Here is an update on recent en banc activity at the Federal Circuit. Since our last update, a party filed its reply brief in a pending en banc case raising questions related to statutory interpretation and agency deference. As for pending petitions, the Federal Circuit received two new responses to petitions in patent cases, the court invited a response to a petition in a design patent case, and the court denied two petitions in two other patent cases. Here are the details.
En Banc Cases
Since our last update, a reply brief was filed in an en banc case, Lesko v. United States. This case raises questions concerning how “officially ordered or approved” in 5 U.S.C. § 5542(a) should be interpreted after Loper Bright Enterprises v. Raimondo, and ultimately whether the Office of Personnel Management is authorized to exercise discretion to adopt a writing requirement. In her reply brief, Lesko argued “Federal workers should be paid for the overtime that they are required to, and do, perform.” She maintained “[t]he government’s arguments to the contrary propose a standard of agency deference that would essentially be a return to Chevron, which Loper overruled.”
En Banc Petitions
New Petitions
Since our last update, two new petitions for en banc review have been filed.
In Acadia Pharmaceuticals Inc. v. Aurobindo Pharma Ltd., MSN Laboratories asked the court to consider “[w]hether a first-filed, first-issued, later-expiring patent can be invalidated by a later-filed, later-issued, earlier-expiring patent for obviousness-type double patenting.”
In Shilpa Pharma, Inc. v. Novartis Pharmaceuticals Corp., Shilpa asked the court to review following questions:
- “May the Court find a patent claim anticipated when one of the claim limitations is admittedly absent from the anticipatory reference?”
- “May the Court redraft a patent claim by reading out and dismissing a claim limitation as immaterial in order to find anticipation?”
New Invitations for Response
Since our last update, the Federal Circuit invited a response from Latham Pool Products in North Star Technology International Ltd. v. Latham Pool Products, Inc. In its petition, North Star Technology asked the court to address “[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.”
Denials
Since our last update, the Federal Circuit denied two en banc petitions:
- Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e.V v. Sirius XM Radio Inc. (equitable estoppel)
- SurfCast, Inc. v. Microsoft Corp. (claim construction)