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 response to a petition was filed in a case raising questions related to standing and contract reformation, and four new amicus briefs were filed in a case raising a question related to damages. Here are the details.

Response

Since our last update, a response to a petition was filed in Applications In Internet Time, LLC v. Salesforce, Inc. In its petition, Applications In Internet Time asked the court to consider the following questions:

  1. “Whether a plaintiff holding a recorded patent assignment, who reasonably believed it owned the asserted patents at the time the complaint was filed, lacks Article III constitutional standing or instead lacks only a statutory cause of action under 35 U.S.C. § 281, where the assignment is later found to be defective due to mistake.”
  2. “Whether the equitable remedies of contract reformation and Rule 17(a)(3) ratification are categorically unavailable to cure defects in title existing when the complaint was filed, notwithstanding this Court’s precedential holding in Schwendimann v. Arkwright Advanced Coating, Inc., 959 F.3d 1065 (Fed. Cir. 2020), and the acknowledged division among district courts applying this Court’s precedent.”

Now, in its response, Salesforce argues “AIT held no rights whatsoever— legal, equitable, or otherwise—in the Asserted Patents when it filed suit in 2013.” Further, Salesforce argues, the “Supreme Court . . . differentiated Article III’s injury-in-fact requirement—grounded in constitutional bedrock—from the inquiry into standing under § 281 for statutory purposes.” Salesforce goes on to say that “[n]either of the cases AIT invokes . . . enables a plaintiff to summon the powers of an Article III court after the court has dismissed all claims upon concluding it lacks Article III jurisdiction.”

Amicus Briefs

Since our last update, four amicus briefs were filed in Exafer Ltd. v. Microsoft Corp. Here is the question presented by Microsoft in this case:

  • “Whether [35 U.S.C.] § 284 requires that damages based on non-infringing product sales as a measure of a reasonable royalty be proximately tied to the use made of the patented invention, or whether a generalized ‘causal connection’ between the patented and unpatented products is sufficient?”

All the recently-filed amicus briefs support rehearing: