Prolitec v. Scentair Tech (Fed. Cir. 2017) [ProlitecDecision]
In a one paragraph en banc order, the Federal Circuit has vacated the panel’s decision here and remanded to allow claim amendments. The court writes:
In light of this court’s en banc decision in Aqua Products, Inc. v. Matal, No. 2015-1177, 2017 WL 4399000 (Fed. Cir. Oct. 4, 2017) (en banc), the portions of the panel’s and Patent Trial and Appeal Board’s decisions in this case concerning Prolitec’s motion to amend are vacated, see Prolitec, Inc. v. ScentAir Techs., Inc., 807 F.3d 1353, 1362- 65 (Fed. Cir. 2015) (Majority Op. Part III); ScentAir Techs., Inc. v. Prolitec, Inc., IPR2013-00179, Paper No. 60, 2014 WL 2965704, at *15-17 (P.T.A.B. June 26, 2014) (Final Written Decision Part III), and this case is remanded to the Board for further proceedings consistent with Aqua.
Since this case raised the same issues as Aqua, the Federal Circuit had been sitting on the en banc petition for the past year awaiting outcome of that case.
I’ll note here that the decision by the Federal Circuit was unanimous. Although many of the judges disagreed with the Aqua decision, they all now regard it as the law and binding precedent of the court.