En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit. The court scheduled oral argument in one of the court’s two en banc cases. As for pending petitions for en banc rehearing, an amicus brief was filed in support of a petition raising a question related to after-arising technologies and the written description and enablement requirements, and the court denied a pro se litigant’s petition. Here are the details.

En Banc Cases

Order Setting Oral Argument

In Percipient.AI, Inc. v. United States, one of the two pending en banc cases, the Federal Circuit scheduled oral argument for June 9. The argument will address the issue of standing to allege a violation of a statute or regulation in connection with the procurement of a government contract.

En Banc Petitions

New Amicus Brief

Since our last update, a new amicus brief was filed in Novartis Pharmaceuticals Corp. v. Torrent Pharma Inc. The brief supports MSN Pharmaceuticals’s petition, which raised the following question:

  • “Whether, if patent claims are construed to cover (or embrace, include, encompass, etc.) later-arising technology—as Novartis argued below and the district court adopted—the patent must describe and enable such later-arising technology under 35 U.S.C. § 112(a) (35 U.S.C. § 112 ¶ 1 (pre-AIA)).”

In its amicus brief, AAM argues the court’s ruling improperly allows Novartis to interpret its patent claims broadly to block generic competition while narrowly avoiding invalidity. AAM supports the district court’s finding that Novartis’s claims lacked sufficient written description. AAM contends the panel’s reversal “threatens to erode the written description test set forth in [the court’s precedent] that has protected the public against the patent claims that seek to capture more than what the inventor contributed to the field.” Additionally, AAM argues, if the court believes de novo claim construction is appropriate, it should explicitly state its revised interpretation and apply it to both infringement and invalidity. AAM urges the court to “grant reconsideration and rehearing en banc to clarify that the panel conducted a de novo claim construction analysis and that the narrower construction resulting therefrom applies not just to its assessment of compliance” with 35 U.S.C. § 112(a) “but to the scope of the claims generally, including for purposes of infringement.”

New Denial

Since our last update, the court denied the petition in Heidary v. Amazon.com, Inc.., a pro se case.