En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, one new petition for en banc rehearing was filed, raising a question regarding claim construction; one new response was filed in another case raising a different question regarding claim construction; and the Federal Circuit denied two petitions for en banc rehearing, both raising questions related to transfer. Here are the details.

En Banc Petitions

New Petition

Since our last update, one new petition for en banc rehearing has been filed.

In Bayer Pharma Aktiengesellschaft v. Mylan Pharmaceuticals Inc., Bayer Pharma asked the court to consider the following question:

  • “When may a court discount a claim limitation in the body of a claim for purposes of assessing patentability?”

New Response

Since our last update, a response was filed in FMC Corp. v. Sharda USA, LLC. In its petition, FMC asked the following question:

  • “Do ordinary claim-construction principles control whether a preamble is limiting, or are preambles subject to special, categorical rules applicable to no other part of the claim?”

Now, in its response, Sharda USA contends “FMC’s arguments rest on a mischaracterization of the panel’s treatment of preambles and the false premise that the panel’s construction of the term ‘composition’ is contrary to intrinsic evidence.” Sharda argues the panel “correctly applied precedent to find that the . . . preamble language is non-limiting because it merely states the purpose or intended use of the composition.” Sharda further asserts the panel “correctly found that the term ‘composition’ is not limited to ‘stable’ compositions.”

Denials

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