En Banc Activity / Featured
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Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, two new petitions for en banc rehearing were filed, one raising questions related to claim construction and Rule 36 summary affirmances and one raising questions related to awards of attorneys’ fees and obviousness. The Federal Circuit also denied petitions for en banc rehearing in two cases, one raising a question related to claim construction and one raising questions related to Rule 36 summary affirmances. Here are the details.

En Banc Petitions

New Petitions

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

In CAO Lighting, Inc. v. Wolfspeed, Inc., CAO Lighting asked the court to consider the following questions:

  1. “May the Board adopt and apply a new claim construction for the first time in its Final Written Decisions and may the Court use Circuit Rule 36 to summarily affirm, without opinion, the Board’s new claim construction, in violation of the Administrative Procedure Act and Constitutional due process and property protections that require a de novo review by the Court?”
  2. “Does the Court’s Rule 36 summary affirmance of the foregoing issues contradict the statutory requirement of 35 U.S.C. § 144 that the Court review the Board’s decision on appeal and upon determination issue to the Director its mandate and ‘opinion’ that ‘shall govern further proceedings in the case,’ where the Court’s summary affirmance without opinion here leaves open the question in further proceedings of the proper scope of claims of the patents in issue that the Board found were not unpatentable.”
  3. “When the Board reaches an initial or final decision on a finding of fact or conclusion law that is different from a prior finding of fact or conclusion of law by the USPTO or a district court, must the Board explain in the institution or final written decision why a different outcome is warranted and must the Federal Circuit, on appeal, issue an opinion relating to that explanation, among other issues on appeal.”

In Dynamite Marketing, Inc. v. The WowLine, Inc., The WowLine asked the court to consider the following questions:

  1. “Whether an award of attorney’s fees under 35 U.S.C. § 285 may be determined and calculated on the basis of a rejected claim for enhanced damages under 35 U.S.C. § 284.”
  2. “Whether a remand on the issue of obviousness is required in light of the change in meaning of the term ‘primary reference’ in this Court’s en banc decision in LKQ Corp. v. GM Global Tech. Ops. LLC, 102 F.4th 1280 (Fed. Cir. 2024), to consider evidence of prior art that was introduced and addressed in the district court proceedings.”

Denials

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