Martek Biosciences Corp. v. Nutrinova, Inc. (Fed. Cir. 2009) (expanded panel)
Sitting in as an expanded five-member panel, the Court of Appeals for the Federal Circuit has largely affirmed a jury verdict finding Martek’s patents valid and infringed. The case involves issues of written description, enablement, sufficiency of infringement evidence, corroboration of prior inventorship arguments, and claim construction of the word “animal.” The five members agreed as to all issues except for claim construction. On that issue, the majority opinion of Judges Newman, Gajarsa, and Moore held that a human is an animal. Judges Lourie and Rader argued in dissent that the patentee’s use of animal suggested that it did not include humans.
I’ll write more about the case in a separate post, but here I want to focus on the procedure of an expanded panel.
Expanded Panel: It appears that the expanded panel was prompted in-part as a show dignitaries who were visiting the court. The court claimed authority under 28 U.S.C. 46(b) which indicates that the “Federal Circuit . . . may determine by rule the number of judges, not less than three who constitue a panel.” There is a problem with this authority. The statute calls for the court to create a “rule” for determining the number of judges. Rather than following a rule, however, the expanded panel here appears to be an ad-hoc creation.
- Parallel Reexamination: As with most litigation, the patents are also under reexamination at the PTO. As usual – and perhaps as required by the law – the Federal Circuit entirely ignored that proceeding.