En Banc Activity / Featured / Petitions
on

Here is an update on recent en banc activity at the Federal Circuit. Since our last update, one new petition for en banc rehearing has been filed, raising a question related to claims of unfair competition under the Lanham Act. The Federal Circuit also denied two petitions for en banc rehearing in patent cases that raised questions related to marking, attorneys fees, eligibility, and appellate procedure. Here are the details.

En Banc Petitions

New Petition

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

In Indect USA Corp. v. Park Assist, LLC, Park Assist asked the court to review the following question:

  • “Whether evidence of litigation is admissible to support an unfair competition claim under Section 43(a) of the Lanham Act.”

Denials

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

In Ortiz & Associates Consulting, LLC v. Vizio, Inc., Ortiz & Associates asked the court to consider the following questions:

  1. “Whether a non-practicing patentee that does not make or sell any patented article, and that has not granted an ongoing practicing license, has any obligation under 35 U.S.C. § 287(a) to ensure that third-party products are marked or to plead compliance with § 287(a).”
  2. “Whether a patentee’s contrary, text- and precedent-based position on that unresolved question can properly support an ‘exceptional case’ finding under 35 U.S.C. § 285.”

In Polar Electro Oy v. Suunto Oy, Polar Electro asked the court to consider the following questions:

  1. “Whether the decision to affirm § 101 ineligibility conflicts with this Court’s and the Supreme Court’s precedents holding that claims directed to improved processes, here specific technological improvements to the functioning of devices, are patent-eligible.”
  2. “Whether a panel may affirm summary judgment that contravenes the principle of party presentation, here an affirmance of patent ineligibility where the district court, not the parties, identified five pieces of prior art never argued by the movant and concluded that claim elements and ordered combinations were ‘well-understood, routine, and conventional.’”