Here is an update on recent en banc activity at the Federal Circuit. As for the only pending en banc case, which relates to the President’s Article II removal powers, there are no updates. As for petitions for rehearing en banc, since our last update one new petition was filed in a patent case raising questions related to appellate procedure and claim construction. Here are the details.
En Banc Petitions
New Petition
Since our last update, one new petition for en banc rehearing was filed.
In Biofer S.P.A. v. Vifor (International) AG, Biofer asked the en banc court to review the following questions:
- Whether the “panel opinion’s sua sponte forfeiture holding (a) conflicts with this Court’s settled standards that unchanged proposed claim-constructions are preserved regardless of supporting arguments; and (b) erroneously held that Biofer’s ‘brief excursions’ argument was new, overlooking that the argument was presented to the district court, explicitly referred to in the appealed Markman Order, preserved in the stipulated judgment, and developed throughout appellate briefing.”
- Whether the panel opinion “conflicts with this Court’s settled standards for interpreting ‘comprising’ claims and prohibiting importing such limitations” when the panel opinion “imported limitations into a claim for which there was no suggestion of lexicography or disavowal, and broad, repeated disclosures of preferred embodiments that lacked limitations.”
- Whether “[t]he panel opinion’s declining to review the hypochlorite term construction that was fully briefed and decided below results in a waste of judicial resources and converts a party’s declaration in a stipulated judgment that it does not infringe because of it, and a counter-assertion disputing that noninfringement contention and reserving appeal, into a nullity, without due consideration of whether the dispute bears on the controversy that will proceed on any remand.”