En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit. Since our last update, the Federal Circuit issued an en banc opinion in a case addressing federal employment law. There also have been four new petitions for en banc rehearing asking questions related to contract interpretation, standing, prior art, and sanctions and fee awards. The Federal Circuit also denied three petitions for en banc rehearing in patent cases. Here are the details.

En Banc Case

On December 12, the Federal Circuit released a precedential opinion in Lesko v. United States, an en banc case addressing federal employment law. Chief Judge Moore authored the majority opinion, which was joined by Judges Lourie, Dyk, Prost, Taranto, Chen, and Hughes. Judge Stoll authored a dissenting opinion, which was joined by Judges Reyna, Cunningham, and Stark.

In her majority opinion, Chief Judge Moore explained:

We granted en banc review sua sponte to address a narrow issue concerning Count II—is the overtime writing requirement in 5 C.F.R. § 550.111(c) a valid exercise of the Office of Personnel Management’s (OPM) rulemaking authority in light of the statutory requirement in 5 U.S.C. § 5542(a) that the Government pay overtime “officially ordered or approved”? We conclude the writing requirement is valid and affirm the Court of Federal Claims’ dismissal of Count II. We refer the remainder of the appeal back to the panel for resolution.

We will post an opinion summary soon.

En Banc Petitions

New Petitions

Since our last update, four new petitions for en banc rehearing have been filed in patent and pro se cases.

In Rasmussen Instruments, LLC v. DePuy Synthes Products, Inc., Rasmussen Instruments asked the court to review the following questions:

  1. Whether the Federal Circuit erred by “disregarding the important distinctions” made by the parties’ agreement between the terms “inventions” and “know-how?”
  2. Whether the Federal Circuit erred when it interpreted an agreement “as a matter of law” instead of considering extrinsic evidence?
  3. Whether the Federal Circuit erred by concluding that “[Petitioner] lacked standing” under Rule 19?

In Merck Serono S.A. v. Twi Pharmaceuticals, Inc., Merck Serono asked the court to review the following questions:

  1. “Whether a disclosure of an invention may be treated as a disclosure ‘by others’ or ‘by another’ under 35 U.S.C. § 102(a), (e) and thus as prior art to a patent filed within one year of the disclosure when nobody ‘other’ than the patent’s co-inventors contributed to the disclosure.”
  2. “Whether the Administrative Procedure Act (‘APA’) entitles a party to notice and a fair opportunity to respond to an agency’s decision to deviate from its longstanding administrative interpretation of law.”

In EscapeX IP, LLC v. Google, LLC, EscapeX asked the court to review the following questions:

  1. “Whether affirmance of § 1927 sanctions based on ‘recklessness’ and ‘objective’ indicia, without an explicit finding of subjective bad faith, conflicts with Ninth Circuit precedent requiring a subjective bad-faith finding for § 1927 sanctions.”
  2. “Whether, despite acknowledging that regional law governs § 1927, the panel applied an ‘objective’ formulation derived from non–Ninth Circuit authority that conflicts with the Ninth Circuit’s subjective bad-faith requirement.“
  3. “Whether the imposition of a sanction under § 1927 in the Ninth Circuit based on the submission of actual evidence from one’s client, not previously considered by the District Court, to challenge a fee award under 35 U.S.C. § 285 will have a chilling effect on a client’s ability to find a lawyer willing to represent it.”

Finally, in In re Catanzaro, a pro se plaintiff asked the court to review the following questions:

  1. “Whether rehearing en banc is warranted where, after the panel’s denial of mandamus, the district court issued an order (Doc. 139) before the mandate had issued, relying on a Federal Circuit docket entry (Doc. 21) that had not been transmitted or made operative-thereby acting without jurisdiction in violation of Federal Rule of Appellate Procedure 41 and longstanding mandate principles.”
  2. “Whether the panel misapplied authority addressing routine civil delay to a materially different record involving extraordinary procedural circumstances, including seven months of unresolved, fully briefed motions; cross-case prejudice affecting two related actions; coercive settlement pressure created by defaulted defendants; a defaulted defendant entering bankruptcy while a motion for default judgment remained pending; and prior appellate findings of abuse of discretion involving the same district court.“

Denials

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