Here is an update on recent en banc activity at the Federal Circuit. Since our last update, two petitions for en banc rehearing have been filed with the Federal Circuit in patent cases, raising questions related to judicial estoppel, appellate procedure, and obviousness. The Federal Circuit also denied a petition for en banc rehearing in a pro se case. Here are the details.
En Banc Petitions
Since our last update, two new petitions were filed in patent cases.
In Gamevice, Inc. v. Nintendo Co., Gamevice asks the Federal Circuit to consider the following questions:
- “Whether, contrary to longstanding rules of judicial estoppel and law of the case, a party who obtains summary judgment that its product practices a patent limitation for purposes of anticipation may subsequently seek and obtain a judgment that the same product does not practice that limitation for purposes of infringement—in conflict with the legal and factual basis for the original summary judgment order.”
- “Whether a court of appeals may properly affirm an inconsistent judgment without resolving the inconsistency by extracting agreement at oral argument that a non-appealing party will seek to vacate a portion of the district court’s judgment in its favor.”
In Orange Electronic Co. v. Autel Intelligent Technology Corp., Orange Electronic asks the Federal Circuit to consider the following questions:
- Whether “the panel decision misapplied the standard for obviousness in dismissing substantial evidence as to the prior art teachings and secondary considerations.”
- Whether “the panel ignored substantial evidence of a lack of motivation to combine based on the claimed frequency requirements.”
Denials
Since our last update, the Federal Circuit denied the following petition for en banc rehearing: