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 en banc court heard oral argument in Lesko v. United States, an employment law case. Additionally, four new en banc petitions have been filed in patent cases raising questions related to the presumption of validity, eligibility, and claim construction. A new response was filed in a case concerning the appropriate test for design-patent infringement. Finally, the court denied petitions for en banc rehearing in two patent cases. Here are the details.

En Banc Case

Since our last update, the Federal Circuit heard oral argument in Lesko v. United States, an employment law case. The Federal Circuit granted en banc status to consider 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 adopt a requirement that any overtime pay be authorized in writing.

En Banc Petitions

New Petitions

Since our last update, four new en banc petitions for en banc rehearing have been filed.

In Mondis Technology Ltd. v. LG Electronics Inc., Mondis Technology asked the court to review the following question:

  • “Does the presumption of validity set out in 35 U.S.C. § 282 apply to all written description cases or does the burden shift to the patentee when there is no in haec verba support for the claims?”

In PowerBlock Holdings, Inc. v. iFit, Inc., iFit asked the court to review the following question:

  • “Can a system that performs an abstract idea avoid ineligibility under 35 U.S.C. § 101 by reciting conventional components that perform only their basic functions at a high degree of generality?”

In Wherevertv, Inc. v. Comcast Cable Communications, LLC, Wherevertv asked the court to review the following question:

  • “Whether a district court can commit reversible error by not construing claim terms, even though the appellant never sought a construction of those terms and instead successfully convinced the district court that no constructions were needed?”

In Google LLC v. MindbaseHQ, LLC, MindbaseHQ asked the court to consider the following questions:

  1. Whether “the panel’s decision conflicts with binding Supreme Court and Federal Circuit precedent by failing to properly defer to the PTAB’s factual findings regarding claim construction and the scope of analogous art.”
  2. Whether “the panel substituted its own interpretation of the term ‘dictionary routine’ and the scope of ‘normalizing’ without identifying clear error in the Board’s factual determinations.”
  3. Whether it a “clear error for the Board to construe a material term that neither party contested in the first place, and to construe it for the first time at oral hearing giving neither party the opportunity to submit evidence either way.”

New Response

One new response to a petition was filed in a patent case.

In North Star Technologies International Ltd. v. Latham Pool Products, Inc., North Star Technologies filed a petition asking the 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.”

Now, in its response, Latham Pool Products argues “North Star’s petition rests on the false premise that this Court’s guidance in Egyptian Goddess en banc conflicts with Gorham.” According to Latham, however, “[i]t does not.” Moreover, Latham contends, “[t]he Panel’s non-precedential decision correctly applied Rule 56 of the Federal Rules of Civil procedure and followed the precedent of this Court and the Supreme Court . . . .” Latham also suggests North Star in its petition is urging the Federal Circuit “to disregard the clear guidance set out in Egyptian Goddess and replace it with overly narrow and arbitrary rules.” But, Latham continues, “the current law provides ample guidance for evaluating when summary judgment of non-infringement is appropriate for design patents.”

Denials

Since our last update, the Federal Circuit has denied petitions for en banc rehearing in the following cases