1. “Whether, in light of the disqualification disclosed in the Clerk’s July 6, 2026 letter, the Court should vacate the July 2, 2026 opinion as to U.S. Patent No. 8,856,638 and redecide that part of the appeal before a reconstituted panel, to protect public confidence in the judgment under 28 U.S.C. § 455 and Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988).”
2. “Whether the panel’s § 112(f) analysis of U.S. Patent No. 8,862,978, under the standards of Williamson, Dyfan and Zeroclick: a. departs from the text of 35 U.S.C. § 112(f) by elevating extrastatutory subsidiary inquiries, such as the availability of commercial embodiments, into effective preconditions for patentees to prove validity of ‘executable code’–style claims that omit the word ‘means’; and b. conflicts with those decisions by remanding rather than reversing, where the panel found that neither side’s expert evidence directly addressed the controlling question which, under the presumption against § 112(f) and the challenger’s burden, required a holding that the claims are not indefinite.”
