En Banc Review

News & Analysis as of

Federal Circuit Grants En Banc Review of PTAB Amendment Practice

On August 12, 2016, the U.S. Court of Appeals for the Federal Circuit granted rehearing en banc to appellants in In re Aqua Products, Inc to consider the procedures used by the USPTO Patent Trial and Appeal Board (PTAB) to...more

Intellectual Property Newsletter -August 2016

Shearman & Sterling’s IP litigation team has published its quarterly newsletter. The newsletter covers a number of current IP topics, including a look at the America Invents Act, five years in; the U.S. International Trade...more

En Banc Federal Circuit To Review Standards for Amending Claims During AIA Proceedings

In a rare grant of a petition for rehearing en banc, the court decided that an appeal “warrants en banc consideration” of who bears what burden when amending in an IPR. In re: Aqua Products, No. 15-1177, slip op. at 2 (Fed....more

Federal Circuit Going En Banc on IPR Standards for Amending

The Federal Circuit has granted rehearing en banc in In re Aqua Products, Inc. to address two issues related to amending claims in inter partes review proceedings before the Patent Trial and Appeal Board: (a) When the...more

Taking a Walk Back to a Kinder, Gentler Interpretation of the Computer Fraud and Abuse Act

We don’t usually talk about four-year-old court decisions in the first instance here. But the Ninth Circuit has issued a pair of noteworthy opinions interpreting the Computer Fraud and Abuse Act in the last few weeks. And...more

En Banc CAFC Requires UCC Sale For On Sale Bar

In an en banc decision issued in The Medicines Company v. Hospira, Inc., the Federal Circuit determined that in order for a commercial transaction to trigger the on-sale bar of § 35 USC 102(b), it must “bear the general...more

Sale of Manufacturing Services Does Not Trigger On Sale Bar Under Pre-AIA §102

In The Medicines Company v. Hospira, Inc., [2014-1469, 2014,1504] (July 11, 2016), the en banc Federal Circuit reversed a panel decision finding that U.S. Patent Nos. 7,582,727 and 7,598,343 were invalid under the on-sale bar...more

Federal Circuit Helps Clarify What Constitutes a Commercial Sale under Pfaff

In The Medicines Co. v. Hospira Inc., Appeal No. 2014-1469 (Fed. Cir. July 11, 2016), the Federal Circuit issued a unanimous en banc decision ruling that the on-sale bar was not triggered by a supplier’s sale of manufacturing...more

Federal Circuit Provides Guidance On When An Agreement For Services Triggers The On-Sale Bar

On July 11, 2016, the Federal Circuit, en banc, overruled the merits panel and affirmed the District of Delaware’s decision in The Medicines Company v. Hospira, Inc. finding that an assignee’s entry into a manufacturing...more

En Banc Federal Circuit Rules A Product Must be the Subject of a Commercial Sale or Offer for Sale to Trigger On-Sale Bar

On July 11, 2016, the U.S. Court of Appeals for the Federal Circuit ruled in a unanimous en banc decision in The Medicines Co. v. Hospira Inc., Federal Circuit case number 2014-1469, that to be “on sale” under pre-AIA 35...more

En Banc: Federal Circuit Provides Guidance on Application of On-Sale Bar to Contract Manufacturers

Pharmaceutical and biotech companies breathed a sigh of relief Monday when the Federal Circuit unanimously ruled in a precedential opinion that the mere sale of manufacturing services to create embodiments of a patented...more

For Purposes of an On-Sale Bar, Sale of Manufacturing Services by a Contract Manufacturer Does Not Necessarily Constitute a...

On July 11, 2016, the United States Court of Appeals for the Federal Circuit issued a decision in The Medicines Co. v. Hospira, Inc., No. 2014-1469. The decision was by the Federal Circuit sitting en banc (the entire court),...more

No Sale: Unanimous Federal Circuit Says “Commercial Sale,” Not “Commercial Benefit,” Applies to the Patent Act’s On-Sale Bar for...

On July 11, 2016, in The Medicines Co. v. Hospira, Inc. (Case Nos. 2014-1469, -1504), the en banc Federal Circuit unanimously concluded that “to be ‘on sale’ under § 102(b), a product must be the subject of a commercial sale...more

It’s Just Too Much

We’ve blogged before about the long-running appeal in the Polett v. Public Communications litigation. That’s the case where the plaintiff had knee implant surgery that was so successful she agreed to make a promotional video...more

Updates On Some Cases About Which We Have Reported

There have been subsequent developments in several cases about which we have posted in recent months. On April 27, 2016, the California Supreme Court denied review in Casey v. Kaiser Gypsum Co., a case in which the...more

First Circuit panel significantly expands VPPA definitions

The First Circuit Court of Appeals on June 7, 2016 denied a petition for rehearing en banc of a panel opinion with potentially significant consequences for providers of video services under the Video Privacy Protection Act of...more

En Banc Fourth Circuit Rules No Fourth Amendment Protection For Cell-Site Location Information

On May 31, 2016, the U.S. Court of Appeals for the Fourth Circuit held in United States v. Graham, Nos. 12-4659 and 12-4825, in an en banc rehearing, that the government’s acquisition of historical cell-site location...more

En Banc Reconsideration Sought in FLANAX Case

Belmora LLC filed a petition for reconsideration en banc of the Fourth Circuit’s FLANAX decision in Belmora LLC v Bayer Consumer Care AG, Appeal No. 15-1335 (4th Cir. March 23, 2016). As we previously have blogged...more

Supreme Court Denies Petition to Review Expanded Theory of Joint Infringement

On Monday the Supreme Court denied certiorari in Limelight Networks Inc. v. Akamai Technologies Inc. et al, Case No. 15-993. Limelight had petitioned the Court in January, urging for review of the Federal Circuit’s en banc...more

Capturing Flagg: Fifth Circuit, En Banc, Holds that Failure to Complete Pre-suit Medical Board Review Renders Med Mal Defendants...

We previously wrote about the Fifth Circuit’s panel decision and the defendants’ petition for rehearing en banc in this case. As we reported earlier, the issue is whether a non-diverse defendant is improperly joined by...more

Kevin A. O’Connor, Ph.D and Kevin C. May File Amicus Brief on Behalf of IPLAC

On April 15, 2016, Kevin A. O’Connor, Ph.D and Kevin C. May, partners in the Intellectual Property & Technology Transactions practice group, filed an amicus brief in the United States Court of Appeals for the Federal Circuit...more

Fla. Appellate Court Reverses Itself In Key Foreclosure Victory For Mortgage Industry

The Florida Third District Court of Appeal (DCA), sitting en banc, reversed itself this week and held that the five-year statute of limitations did not bar a second foreclosure suit filed on a subsequent payment default so...more

Florida’s Third DCA Withdraws Opinion Impacting Mortgage Lenders

Last April, we provided an update on the Florida Third District Court of Appeal’s opinion in Deutsche Bank Trust Company Americas v. Beauvais. In that decision, the Third District held a dismissal without prejudice does not...more

Split Florida Court Withdraws Beauvais Opinion to Hold that Dismissal Without Prejudice of Foreclosure Action Does Not Bar Second...

After a rare en banc oral argument, the court withdrew its earlier opinion and released a new en banc decision holding that dismissal of a foreclosure action accelerating payment on one default does not time-bar a subsequent...more

Florida’s Third DCA Reverses Course on Statute of Limitations for Mortgage Foreclosure

Florida’s Third District Court of Appeal retreated from one of its most unpopular opinions this morning. The Third DCA surprised many with its original ruling in Deutsche Bank Trust Company Americas v. Beauvais¸ 3D14-575 when...more

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