En Banc Activity / Featured
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Here is an update on recent en banc activity at the Federal Circuit. Since our last update, three amicus briefs were filed in the only pending en banc case, which relates to the President’s Article II removal power. Three new petitions for en banc rehearing have been filed raising questions related to appellate procedure, the written description requirement, and claim construction. Finally, six petitions were denied in cases raising questions related to burden of proving unpatentability in inter partes review proceedings, obviousness, damages, appellate procedure, the domestic industry requirement, and objective indicia of nonobviousness. Here are the details. 

En Banc Cases

Since our last update, three amicus briefs were filed in Jackler v. Department of Justice, the only pending en banc case. As a reminder, in this case the court will review a decision of the Merit Systems Protection Board and answer the following question:

  • “Whether the Civil Service Reform Act’s procedural and substantive protections for federal workers conflict with the President’s Article II removal power.”

The amicus briefs support reversal:

En Banc Petitions

New Petitions

Since our last update, new petitions were filed in three patent cases.

In Linfo IP, LLC v. Trustpilot, Inc., Linfo IP asked the en banc court to review the following questions:

  1. “[W]hether the panel misapprehended the scope and structure of the parties’ settlement when it dismissed this appeal as moot.”
  2. “[I]n the alternative, whether the unreviewed § 101 invalidity judgment should be left intact to operate as collateral estoppel while the identical eligibility question is live before this Court in the co-pending appeal, Linfo IP, LLC v. American Exchange Apparel Group / Aero Global, LLC, No. 2025-2006 — or whether it should be vacated under United States v. Munsingwear, Inc. and 28 U.S.C. § 2106.”

In Enanta Pharmaceuticals, Inc. v. Pfizer Inc., Enanta Pharmaceuticals asked the en banc court to review the following questions:

  1. “Whether a specification that provides a detailed list of exemplary embodiments must literally recite each and every claimed embodiment in order to satisfy the written-description requirement.”
  2. “Whether that rule applies even where the list expressly states that it is nonlimiting, and regardless of whether disclosures elsewhere in the specification would reasonably convey to a POSA that the applicant possessed the full scope of the claimed invention.”
  3. “Where a district court enters summary judgment using an incorrect legal standard and there is unrebutted expert evidence raising a genuine issue of fact under the correct legal standard of written description, whether an appellate court should reverse and remand rather than conduct its own written description assessment in the first instance.”

In PACT XPP Schweiz AG v. Intel Corp., PACT XPP Schweiz AG asked the en banc court to review a panel decision:

  1. “Whether the demanding standard for finding prosecution disclaimer can be avoided by characterizing a prosecution statement as evidence bearing on claim construction.”
  2. “Whether a party can preserve an argument by citing a specific paragraph of its expert’s report that makes the argument.”

Denials

Since our last update, the Federal Circuit denied six petitions for en banc rehearing: