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 has been filed, raising a question related to the court’s ability to decide the adequacy of written description without deferring to a jury’s verdict; one new amicus brief was filed in support of a petition that raised a question related to venue; and, finally, the court denied two petitions for en banc rehearing one in a pro se case and the other that raised questions related to what qualifies as prior art and the Administrative Procedure Act. Here are the details.  

En Banc Petitions

New Petitions

Since our last update, one new petition for en banc rehearing has been filed. In Duke University v. Sandoz Inc., Duke asked the court to review the following question:

  • “Whether a panel of this Court can decide the adequacy of written description—a question of fact—without deferring to a jury’s verdict.”

Amicus Briefs

Last week, the United States Chamber of Commerce filed an amicus brief in In re Comcast Cable Communications. In its petition for rehearing, Comcast asked the court to consider the following question:

  • “Whether a defendant’s alleged performance of a single step of a claimed multi-step method in a judicial district is sufficient to establish that ‘the defendant has committed acts of infringement’ in the district for purposes of venue under 28 U.S.C. § 1400(b).”

Now, in its amicus brief supporting Comcast’s position and the petition for en banc rehearing, the Chamber of Commerce argues Comcast’s petition presents “an important legal issue regarding the correct interpretation of the patent venue statute.” According to the Chamber, this question warrants rehearing because it “has been frequently litigated in recent years” and “produced conflicting answers from district courts.” In the Chamber’s view, without intervention from the Federal Circuit, “this divide is likely to deepen as litigants increasingly contest the issue before district courts.” It further contends that, “[o]n the merits, the answer is clear.” The Chamber says “to establish the ‘acts of infringement element of the patent venue statute, it is not enough that some subset of the method’s steps are performed in the judicial district where the suit was filed.”

Denials

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