In response to a petition filed by Lighting Ballast Control, the Federal Circuit has granted rehearing en banc in the case of Lighting Ballast Control v. Philips Electronics North America and instructed the parties to address the following issues:

  1. Should this court overrule Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448 (Fed. Cir., 1998)?
  2. Should this court afford deference to any aspect of a district court’s claim construction?
  3. If so, which aspects should be afforded deference?

For some perspective on the Federal Circuit’s struggle with the Cybor rule, see McDermott’s IP Update reports on Retractable Technologies, Inc. v. Becton, Dickinson and Co. (IP Update, Vol. 14, No. 7) and Amgen v. Hoechst (IP Update, Vol. 9, No. 12).