En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit. Since our last update, the government filed its response brief in President Trump’s appeal challenging judgments and injunctions entered by the Court of International Trade in cases related to his tariffs. Additionally, the Federal Circuit received two new responses to petitions for en banc review filed in patent cases along with two new amicus briefs in a patent case and a takings case. Finally, the court recently denied one petition for en banc review in a patent case. Here are the details.

En Banc Cases

In V.O.S. Holdings, Inc. v. Trump, there is one update. As a reminder, this case involves challenges to the legality of President Trump’s tariffs under the International Emergency Economic Powers Act.

Since our last update the Executive Office of the President has filed its reply brief. In it, the government argues “[t]he President’s actions are consistent with IEEPA’s text and precedents of [the Federal Circuit] and the Supreme Court.” The government maintains “Plaintiffs’ attempts to defend the CIT’s actual reasoning—that ‘regulate . . . importation’ authorizes only some tariffs—likewise fail” since Section 1222 of the Trade Act of 1974 “cannot be read to narrow the President’s IEEPA authority.” The government also contends “the major-questions and nondelegation doctrines [do not] aid plaintiffs” because “Congress routinely delegates tariff authority to the President to augment his inherent powers over foreign affairs and national security, and . . . broad delegations in that sphere are the norm.” Finally, the government argues, “plaintiffs cannot sustain the CIT’s entry of a universal injunction” because of “the Supreme Court’s recent decision” establishing “that injunctive relief must be limited to the parties before the court.”

En Banc Petitions

New Responses

Two new responses to petitions were filed in patent cases.

In Longitude Licensing Ltd. v. Google LLC, Longitude Licensing filed a petition suggesting rehearing en banc is necessary because the panel decision “introduces uncertainty as to the role of the specification in the [patent eligibility] analysis.” 

Now, in its response, Google argues “[t]his Court’s nonprecedential decision holding that Longitude’s claims are directed to patent-ineligible subject matter is a straightforward application of well-established . . . principles to the specific claims in this case.” Google suggests “Longitude’s petition . . . relies on mischaracterizing the panel’s decision and this Court’s precedent.” Google also contends “no conflict or question of exceptional importance justifies further review.”

In Power2B, Inc. v. Samsung Electronics Co., Power2B filed a petition asking the en banc court to consider three questions:

  1. “Whether the Court can invalidate a patent claim on appeal from the PTAB where the petitioner below failed to address a claim limitation in its petition for inter partes review.”
  2. “Whether the Court can shift the burden to the patent owner to prove that different patent claim terms have different meanings to invalidate a patent claim on appeal from the PTAB.”
  3. “Whether the Court can revive forfeited arguments not presented to the PTAB to invalidate a patent claim on appeal.”

Now, in its response, Samsung argues “Power2B’s petition for rehearing adopts the dissent’s view and contends that the majority is wrong because the recited terms in claim 20 are ‘different’ from the terms in independent claims 1, 10, and 17 and dependent claims 6, 7, and 13.” Samsung maintains, however, that “Power2B could not articulate any difference between these substantially similar claim terms” despite “extensive briefing and argument.” Samsung concludes that, ultimately, “Power2B disagrees with the majority’s decision,” but, it says, “mere disagreement does not warrant a grant of rehearing.”

New Amicus Briefs

Two new amicus briefs were filed.

In North Star Technology International Ltd. v. Latham Pool Products, Inc., North Star filed a petition asking the en banc court to consider “[w]hether the undefined and standardless ‘sufficiently distinct’ test for design-patent infringement, as well as its application at the summary-judgment stage, conflicts with Gorham Co. v. White, 81 U.S. 511 (1871), and a court’s obligations under Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and other summary-judgment precedent.”

Since our last update, the Institute for Design Science and Public Policy filed an amicus brief supporting neither party. It argues, “based on the results of an empirical study conducted by IDSPP, the meaning of the term ‘plainly dissimilar’ is highly likely to be misinterpreted by district courts and juries.” IDSPP suggests that “[t]his result, combined with a lack of guidance” from the Federal Circuit “on the meaning of the term ‘plainly dissimilar,'” will “lead to incorrect outcomes in design patent infringement cases.” IDSPP suggests “additional guidance” from the Federal Circuit “is needed to ensure accurate and consistent application of the Gorham ordinary observer test.”

In United Water Conservation District v. United States, United Water Conservation District filed a petition asking the en banc court to consider the following questions:

  1. “When the government commandeers from a private usufructuary water rights holder the beneficial use of a volume of water for a public-purpose beneficial use, and thereby deprives the property holder with the usufructuary right from using that same volume of water for its own private beneficial use, does the governmental action constitute an appropriation, and therefore a per se physical taking, of the property holder’s property right in the beneficial use of the commandeered water? “
  2. “Is prior physical possession of the specific water molecules at issue a legal prerequisite to establish a partial physical taking of an appropriative water right, when the government commandeers the beneficial use of the water for a public purpose and thereby prevents the appropriative rights holder from diverting the water and putting the water to its own private beneficial use?”

Now numerous groups–the Western Growers Association, the California Cotton Ginners and Growers Association, the Western Tree Nut Association, the California Farm Bureau Federation, the California Avocado Commission, the California Fresh Fruit Association, the California Seed Association, the California Cherry Growers and Industry Association, and the California Pear Growers Association–filed an amicus brief in support of United Water Conservation District. In their brief, they argue that, “[u]nder common law and statutory schemes, priority is the central principle for allocating water among competing uses.” But, they say, the panel opinion “categorically misstates California water law by finding that[,] despite possessing a previously vested appropriative water right from a state licensing process, an entity needed to have physically diverted water at the time it was expropriated by the government for its property right to vest.”

Denial

Since our last update the Federal Circuit denied en banc rehearing in the following case: