Here is an update on recent en banc activity at the Federal Circuit. An amended petition was filed in a veterans case recently argued before the en banc court. As for pending en banc petitions in patent cases, highlights include new responses to petitions raising questions related to claim preclusion and sanctions; a new amicus brief filed in a case raising a question related to obviousness; and the denial of three petitions raising questions related to remedies, issue and claim preclusion, jurisdiction in inter partes review, and alleged due process and takings violations in inter partes review. Here are the details.
En Banc Cases
In National Organization of Veterans Advocates v. Secretary of Veterans Affairs, after the recent oral argument in the case and in response to a court order inviting NOVA to file an amended petition, NOVA filed an amended petition. In it, NOVA added three individuals as petitioners in an effort to eliminate any concern about NOVA’s Article III standing. Additionally, NOVA challenged VA’s “Agency Interpretation of Prosthetic Replacement of a Joint.”
En Banc Petitions
New Responses
In In re PersonalWeb Technologies LLC, Amazon (intervenors in this case) filed its response to PersonalWeb’s petition for en banc review. In the petition, PersonalWeb argued that the panel’s decision improperly expanded Supreme Court precedent and “effectively eviscerate[d] well-established Supreme Court limits on the doctrine of claim preclusion.” In response, Amazon argues that the unanimous panel properly applied the doctrine of preclusion in this case.
In Khan v. Hemosphere Inc., Merit Medical Systems filed its response to the Khans’ petition for en banc review. In the petition, the Khans argued that the panel’s decision, which held that warning letters at issue in this case could take the place of any “motion” required by Rule 11, “breaks sharply with the text of the Rule and with every other Court of Appeals to consider the issue.” In its response, Merit Medical argues that the applicable Seventh Circuit law allows warning letters to satisfy the Rule 11 motion requirement, and that the multiple letters issued to the Khans complied with that precedent.
New Amicus Brief
In Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc., Biotechnology Innovation Organization (“BIO”) filed an amicus brief in support of en banc review. BIO argues that its members (an assortment of biotechnology companies, academic institutions, and biotechnology centers) have great interest in this case and in particular on the issue of obviousness raised by the petition because “if investors fear that courts are not reviewing obviousness consistently or that marketable biotechnology patents will be prone to later invalidation, future innovation will suffer from less investment.”
Denials
The Federal Circuit denied petitions in the following three cases:
- Gensetix, Inc. v. Baylor College of Medicine (remedies)
- Sowinski v. California Air Resources Board (issue and claim preclusion)
- Verify Smart Corp. v. Askeladden, LLC (jurisdiction in inter partes review and alleged due process and takings violations in inter partes review)