En Banc Activity / Featured
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Here is an update on recent en banc activity at the Federal Circuit. Since our last update, the Federal Circuit received two letters in the court’s pending en banc case involving President Trump. In addition, two petitions for en banc review were filed in patent cases raising questions related to Rule 52 evidentiary trials and patent eligibility, and the court denied a petition in another patent case raising questions related to invalidity. Here are the details.

En Banc Cases

There are three pending en banc cases at the Federal Circuit. Since our last update, there is an update in only one of these cases. In V.O.S. Selections, Inc. v. Trump, the en banc case challenging President Trump’s tariffs, two letters have been filed with the court.

The government filed a letter arguing that recent trade agreements “support our request for a stay if the Court affirms.” The government suggests these deals amount to “trillions of dollars” and “other countries have committed to pay massive sums of money.” The government indicates that, “[i]f the United States were forced to unwind these historic agreements, the President believes that a forced dissolution of the agreements could lead to a 1929-style result.”

V.O.S. Selections responded with its own letter. It argues “the government already cited the same events at argument . . . , making them improper for a Rule 28(j) letter.” It also suggests “any stay request is premature when it is not yet known how the Court will rule and it is impossible to evaluate the likelihood of a grant of certiorari or success before the Supreme Court.” According to V.O.S. Selections, moreover, the court “should deny any stay in excess of the shortest period necessary for the government to file a petition for certiorari and a mutually acceptable briefing schedule thereafter.” Regarding the substance of the government’s letter, V.O.S. Selections maintains “there is no basis for its declaration that there is ‘no substitute’ for ‘the tariffs and deals that President Trump has made.’” It also contends that, “[e]ven without IEEPA, the President can obtain ex ante authority to enter into trade agreements.”

En Banc Petitions

New Petitions

Since our last update, two new petitions for en banc review were filed with the Federal Circuit.

In Ball Metal Beverage Container Corporation v. Crown Packaging Technology, Inc., Crown Packaging asked the following questions:

  1. “Did a panel of this Court err when it concluded that a district court held a Rule 52 evidentiary trial even though (i) the parties agree that the district court held no such trial, (ii) the district court provided no notice that it was going to hold such a trial nor references such trial in its decision on summary judgment, and (iii) the plaintiff was given no opportunity to: conduct direct or cross examination of witnesses at trial; object to admissibility of hearsay expert reports; or otherwise benefit from federal rules regarding civil procedure or evidence that govern such trials?”
  2. “Did a panel of this Court err in finding that a plaintiff waives its right to participate at a Rule 52 evidentiary trial simply because (a) the plaintiff did not request such a trial in opposition to a motion for summary judgment and (b) the plaintiff did not demonstrate a ‘concrete . . . need’ to participate nor demonstrate ‘concrete . . . prejudice’ for not participating?”

In United Services Automobile Association v. PNC Bank N.A., United Services asked, “[w]here the patent challenger submits no evidence at all about the conventionality of the claimed invention as an ordered combination, and the patent owner submits expert evidence that the claimed invention was not conventional, may a court resolve the [Alice] step-two dispute as a matter of law at summary judgment?”

Denial

Since our last update, the Federal Circuit denied the petition for en banc review in the following case: