En Banc Activity / Petitions
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Here is an update on recent en banc activity at the Federal Circuit in patent cases. The court received three new petitions raising questions related to the inducement doctrine’s interaction with Hatch-Waxman Amendments, the Patent Trial and Appeal Board’s analysis of the non-obviousness requirement, and venue. The court also denied two petitions for rehearing en banc raising questions related to anticipation, the evidentiary basis of an invalidity finding, and the proper standard of review of agency determinations. Here are the details.

En Banc Petitions

New Petitions

In GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc., Teva Pharmaceuticals USA asked the en banc court to review the following questions:

  1. Whether the “inducement doctrine can be used to nullify a provision of the Hatch-Waxman Amendments.”
  2. Whether when “a product has substantial noninfringing uses and the defendant has deleted instructions to practice the patented method from its labeling, may the plaintiff prove active inducement by claiming that several disparate sections of the labeling ‘met’ or ‘satisfied’ the individual elements of the patented method, or does proof of active inducement require proof that the defendant encouraged the patented method?”
  3. Whether “active inducement and causation are distinct elements of inducement” and, when “a jury finds active inducement, may the jury infer that the defendant’s inducement caused direct infringement, even when undisputed evidence shows that the supposedly inducing materials did not influence anyone to infringe?”

In Sirius XM Radio Inc. v. Fraunhofer-Gesellschaft Zur Forderung Der Angewandten Forschung E.V., Sirius XM Radio asked the en banc court to review 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, most notably Ericsson Inc. v. Intellectual Ventures I LLC, 901 F.3d 1374 (Fed. Cir. 2018) as well as the following: Graham v. John Deere Co., 383 U.S. 1 (1966); Koninklijke Philips N.V. v. Google LLC, 948 F.3d 1330 (Fed. Cir. 2020); Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034 (Fed. Cir. 2016) (en banc); Ariosa Diagnostics v. Verinata Health, Inc., 805 F.3d 1359 (Fed. Cir. 2015); and Randall Mfg. v. Rea, 733 F.3d 1355 (Fed. Cir. 2013).”

In Andra Group, LP v. Victoria’s Secret Stores, LLC, Andra Group asked the en banc court to review the following question:

  • “Whether it is a violation of 28 U.S.C. § 1400(b) for a court to consider, as a threshold matter in a patent venue dispute, whether the place of business of one company can be imputed to another company for venue purposes when they have maintained ‘corporate separateness.’”

New Denials

The Federal Circuit denied petitions in the following cases: