Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, the court received a petition raising a question regarding claim construction, and the court denied a petition raising questions regarding reliance on expert testimony in applying the doctrine of equivalents. Here are the details.
New Petition
Since our last update, one new petition has been filed. In XMTT, Inc. v. Intel Corporation, XMTT raised the following issue:
- Whether “[t]his Court’s decision summarily affirming the district court’s judgment under Rule 36 without elaboration necessarily relied upon a flawed district court claim construction interpreting claim terms including the words ‘serial processor’ in a manner inconsistent with: 1) their ‘meaning in the field’ (including by Intel itself outside of this dispute), 2) the full language of the claims, and 3) their ‘meaning . . . within the context of the patent’ (including the very purpose of the invention) contrary to this Court’s seminal Phillips claim construction decision.”
Denial
Since our last update, the court denied the petition in NexStep, Inc. v. Comcast Cable Communications, LLC, which raised the following questions:
- “Whether expert testimony is always required to prove infringement under the doctrine of equivalents.”
- “Whether proving equivalence requires the same type of testimony in every case, or whether the proof of equivalence should depend on the nature of the technology and the alleged equivalence at issue.”
- “Whether the jury is entitled to rely on an expert’s literal infringement testimony in determining equivalence.”