Here is an update on recent en banc activity at the Federal Circuit. Highlights include two new briefs filed in the only pending en banc case, which relates to the President’s Article II removal powers. As for pending petitions, four new petitions were filed in cases raising questions relating to claim construction, appellate procedure, and petitions for inter partes review. The court also denied one petition raising issues regarding claim construction and appellate procedure. Here are the details.
En Banc Cases
Since our last update, the Department of Justice and the Merit Systems Protection Board both filed briefs in Jackler v. Department of Justice. 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 DOJ’s brief asserts that immigration judges are “executive officers . . . who wield ‘significant authority pursuant to the laws of the United States,'” and therefore they are “subject to the usual rule that ‘lesser officers must remain accountable to the President.'”
The MSPB’s brief argues the MSPB “properly followed the Supreme Court’s interpretation, which has made clear that Congress may not create removal restrictions for executive branch inferior officers who are vested with significant administrative authority.”
En Banc Petitions
New Petitions
Since our last update, new petitions were filed in four cases.
In Woodway USA, Inc. v. LifeCore Fitness, Inc., Lifecore asked the en banc court to review the following question:
- Whether “the full panel of this Court should address this appeal en banc to maintain a consistent application of its precedent with respect to file history disclaimer and to protect the public’s continuing right to rely on such disclaimers.”
In VDPP, LLC v. Volkswagen Group of America, Inc., VDPP asked the en banc court to review the following two questions:
- “Whether the Federal Rules of Appellate Procedure 3(c)(7) permits dismissal of a sanctioned attorney’s appeal when a timely notice expressly designates the order imposing the attorney’s personal sanction, identifies the attorney by name in that designation, and is signed and filed by the attorney, but the notice’s opening sentence identifies only the client as appellant.”
- “Where Rule 3(c)(1)(A), as amended in 1993 and 2021 and read together with Rule 3(c)(7), is jurisdictional, where the content requirement appears only in a court-made rule and not in 28 U.S.C. § 2107, and where this Court has already held that reliance on pre-Bowles, pre-Hamer jurisdictional characterization of Tule 3(C) is unpersuasive.”
In Keysight Technologies, Inc. v. Centripetal Networks, LLC, Keysight asked the en banc court to review the following question:
- “Whether, in evaluating compliance with the particularity requirement of 35 U.S.C. § 312(a)(3), the Board must analyze the substance of a petitioner’s discussion of the prior art to determine whether it adequately addresses a claim limitation, or whether a finding of non-compliance may rest solely on the absence of formal organizational markers such as separate headers or express claim-number references accompanying the relevant analysis.”
In Ceiva Opco, LLC v. Amazon.com, Inc., Amazon asked the en banc court to review the following question:
- Whether “the panel’s opinion [can] be reconciled with the Court’s long line of § 101 precedents holding that, even when addressed to technological context, a claim must do more than recite an idea or a useful result.”
Denials
The Federal Circuit denied a petition for rehearing en banc in PACT XPP Schweiz AG v. Intel Corp. a case raising questions related to claim construction and appellate procedure.