En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit. Since our last update, the government filed its opening brief in President Trump’s appeal challenging the judgments and injunctions entered by the Court of International Trade in cases related to his tariffs. Two amicus briefs were also filed in the same case. Additionally, the Federal Circuit received two new petitions for en banc review, one in a patent case appealed from a district court and one in a pro se case appealed from the Patent Trial and Appeal Board. Lastly, the Federal Circuit recently denied two petitions for en banc rehearing. Here are the details.

En Banc Cases

There are two updates in V.O.S Selections, Inc. v. Trump. As a reminder, this case involves challenges to the legality of President Trump’s tariffs under the International Emergency Economic Powers Act.

Since our last update, the government filed its opening brief in this case. In it, the government argues the International Emergency Economic Powers Act’s “text and history, as well as governing precedent, all confirm that the statute clearly authorizes the President to impose tariffs to address declared emergencies.” It points out the Court of International Trade “properly did not question whether IEEPA authorizes tariffs as a general matter.” The government claims that, while “the CIT . . . invoked the major-questions doctrine, . . . that doctrine . . . provides no support for the CIT’s interpretation.” It says “the CIT’s view that Section 122 of the Trade Act of 1974 precludes the imposition of tariffs under IEEPA . . . is likewise unfounded.” The government also argues “the CIT erred in entering a sweeping universal injunction” because “the CIT entirely failed to consider the four-factor test the Supreme Court has established for permanent injunctive relief.” In the end, the government asks the Federal Circuit to reverse the CIT’s judgment. If the Federal Circuit affirms the CIT’s judgment, moreover, the government asks the Federal Circuit to “extend its stay through the issuance of its mandate” so the government can seek relief from the Supreme Court.

Additionally, two amicus briefs have been filed in this case. Both support the government. One was filed by the America First Policy Institute. The other was filed by the America First Legal Foundation and Coalition for a Prosperous America.

Petitions

New Petitions

Since our last update, two new en banc petitions have been filed.

In North Star Technology International Ltd. v. Latham Pool Products, Inc., North Star Technology asked the court to consider the following question:

  • “Whether the undefined and standardless ‘sufficiently distinct’ test for design-patent infringement, as well as its application at the summary-judgment stage, conflicts with Gorham Co. v. White, 81 U.S. 511 (1871), and a court’s obligations under Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and other summary-judgment precedent.”

In Li v. Apple Inc., a pro se litigant filed a petition for en banc rehearing presenting the following questions:

  1. “Whether a prior art reference needs to include a written description to disclose a negative limitation, or whether silence constitutes such a disclosure.”
  2. “Whether the panel may interpret a prior art reference by converting an ‘after’ limitation (sequential) into an ‘only after’ limitation (exclusive sequential) without supporting evidence or a reasoned rationale.”

Denials

Since our last update, the Federal Circuit has denied two petitions for en banc rehearing: