Recent En Banc Activity

Here is an update on recent en banc activity at the Federal Circuit. Since our last update, fourteen amicus briefs were filed in the only pending en banc case, which relates to the President’s Article II removal power. Also, two new response briefs were filed in response to petitions in patent cases raising questions related to damages, the written description requirement, and the enablement requirement. Here are the details.

En Banc Cases

Since our last update, fourteen 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.”

With one exception, the brief filed by the Federal Circuit Bar Association, all the amicus briefs support reversal:

• Brief of the American Immigration Lawyers Association as Amicus Curiae in Support of Petitioners and Reversal
• Brief of Professor Nicholas R. Bednar and Professor Amy J. Wildermuth as Amicus Curiae in Support of Petitioners and Reversal
• Brief for Amicus Curiae The Merit Systems Protection Board Professional Association in Support of Petitioners and Reversing the Merit Systems Protection Board’s Decision
• Brief of Amicus Curiae Association of Administrative Law Judges in Support of Petitioners and Reversal of the MSPB
• Corrected Brief of Amici Curiae Union of Concerned Scientists, Center for Open Science, and Environmental Protection network in Support of Petitioners and Reversal
• Brief of Former Director and Acting Director of the United States Office of Personnel Management as Amicus Curiae in Support of Petitioners and Reversal
• Brief Amicus Curiae of Justice Connection in Support of Petitioners and Reversing the Merit Systems Protection Board’s Decision
• Brief of Amici Curiae Legal Scholars Catherine L. Fisk, Noah A. Rosenblum, Katherine Shaw in Support of Petitioners Urging Reversal
• Amicus Curiae Brief for EEO Leaders In Support of Petitioners and In Support of Reversal
• Brief of National Association of Immigration Judges as Amicus Curiae in Support of Petitioners and Urging Reversal
• Corrected Brief of Amici Curiae Labor Organizations in Support of Petitioners and Reversal
• Corrected Brief of Amici Curiae Seven Senators and Thirty-Nine Representatives in Support of Petitioners and Reversal
• Corrected Brief of Amicus Curiae Metropolitan Washington Employment Lawyers Association and National Employment Lawyers Association in Support of Petitioners

Here is a link to the Federal Circuit Bar Association’s brief, which supports neither party:

• Brief of the Federal Circuit Bar Association as Amicus Curiae in Support of Neither Party

En Banc Petitions

Since our last update, two new responses to petitions were filed.

In its petition in Constellation Design, LLC v. LG Electronics Inc., LG Electronics asked the court to consider the following question:

• Whether “the panel decision is contrary to the following decision(s) of the Supreme Court of the United States or the precedent(s) of this court: Garretson v. Clark, 111 U.S. 120 (1884); LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51 (Fed. Cir. 2012); Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201 (Fed. Cir. 2014); VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308 (Fed. Cir. 2014); and Omega Patents, LLC v. CalAmp Corp., 13 F.4th 1361 (Fed. Cir. 2021).”

Now, in its response, Constellation Design argues “LG’s rehearing petition raises factual disputes dressed up in legal garb.” According to Constellation Design, “LG spends the vast majority of its petition rehashing factbound objections to the panel’s determination that there was a sufficient evidentiary basis supporting the damages award.” Constellation Design suggests, moreover, that “all of LG’s arguments were before the panel, which rejected them.”

In its petition in In Teva Pharmaceuticals International GmbH v. Eli Lilly and Co., Eli Lilly asked the en banc court to review the following questions:

1. “Whether a specification’s disclosure of species outside the scope of a claimed genus constitutes a disclosure of representative species that can provide written-description support for an otherwise unsupported genus claim.”
2. “Whether adding functional method-of-use limitations to otherwise nonenabled genus claims renders the claims enabled, as the panel held.”

Now, in its response, Teva Pharmaceuticals argues “[t]his case involves (1) novel method of treatment claims, (2) a genus of antibodies that Lilly itself characterized as already ‘well known’ in the art, and (3) a specification that teaches a POSA that all members of that well-known genus will work in the claimed method of treatment.” According to Teva, therefore, “[t]his is not a case involving a novel genus of antibodies, or a method of treatment using a known genus where it is uncertain which species will work.” Teva contends that, “[a]s a result, Lilly’s reliance on precedents involving those very different circumstances—meaning every precedent Lilly cites—is badly misplaced.”