En Banc Activity / Featured / Panel Activity / 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, three new petitions for en banc rehearing were filed raising questions related to Federal Rule of Evidence 702, expert witness analyses related to disclosed structure for means-plus-function limitations, and patent eligibility; one new response was filed to a petition raising questions related to de minimis infringement; and the Federal Circuit denied a petition that raised a question related to eligibility. Here are the details.

En Banc Petitions

New Petitions

Since our last update, three new petitions for en banc rehearing have been filed at the Federal Circuit.

In Barry v. DePuy Synthes Companies, DePuy Synthes Companies asked the court to consider the following question:

  • “[W]hether, after the 2023 amendments to Federal Rule of Evidence 702 and this Court’s en banc decision in EcoFactor, a panel may treat as issues of “weight” matters that go to the questions of (i) sufficiency of an expert’s basis for his opinions, and (ii) reliable application of methodology, including where trial testimony departs from the governing claim construction and where a survey expert fails to demonstrate representativeness of the survey population and employs flawed survey question design.”

In Genuine Enabling Technology LLC v. Sony Group Corp., Genuine Enabling Technology asked the court to consider the following question:

  • Whether “the panel decision is contrary to the following precedents of this Court: Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1267 (Fed. Cir. 1999); Solomon Techs., Inc. v. International Trade Comm’n, 524 F.3d 1310, 1317 (Fed. Cir. 2008); and In re Hayes, 982 F.2d 1527, 1540 (Fed. Cir. 1992).”

Finally, in REGENXBIO Inc v. Sarepta Therapeutics, Inc., Sarepta Therapeutics asked the court to consider the following question:

  • “Whether routine manipulation of a naturally occurring DNA sequence, without more, is sufficient to confer patent eligibility under 35 U.S.C. §101.”

New Response

Since our last update, a new response was filed in Arlton v. AeroVironment, Inc. In its petition, Arlton asked the court to consider the following question:

  • “Is the meaning of de minimis infringement as applied in the context of 28 U.S.C. § 1498 different from the long-established meaning of de minimis infringement under 35 U.S.C. § 271?”

Now, in its response, AeroVironment argues “[t]he Court . . . explicitly declined to reach [the de minimis] issue.” As a result, it says, “the entire basis of the petition is unfounded, and the petition should be denied.” Furthermore, it argues, “the panel opinion cannot answer a precedent-setting question of exceptional importance for the straightforward reason that the panel disposition is designated non-precedential.” Moreover, it continues, “even if the decision was precedential, the panel opinion expressly declined to address the allegedly ‘precedent-setting question’ identified in the petition.” Finally, it says, “none of [Arlton’s] identified issues are, in fact, errors and would not warrant rehearing regardless.”

Denial

Since our last update, the Federal Circuit denied a petition in the following case: