Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, one petition for rehearing en banc was denied in a patent case raising questions about the written description requirement and appellate procedure. Here are the details.
En Banc Petitions
Denials
Since our last update, the Federal Circuit denied the petition for en banc rehearing in Enanta Pharmaceuticals, Inc. v. Pfizer Inc. As a reminder, in its petition, Enanta Pharmaceuticals asked the court to consider the following questions:
- “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.”
- “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.”
- “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.”
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