In a nonprecedential order issued March 15, 2013, the Federal Circuit granted rehearing en banc in Lighting Ballast Control, LLC v. Philips Electronics North America Corp., to consider the following questions:

  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?

The order expressly invites amicus briefs:

The court invites the views of the United States Patent and Trademark Office as amicus curiae. Other briefs of amici curiae will be entertained, and any such amicus briefs may be filed without consent and leave of court but otherwise must comply with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29.

The Underlying Case

The underlying case is interesting because the district court judge construed the claims one way in the context of a motion for summary judgment, but then reversed itself on a motion for reconsideration. The Federal Circuit reversed that decision, essentially finding that the district court had gotten it right the first time.

The underlying issue also is one that seems to present a clear-cut case for reversal:

Does the term “voltage source means” invoke means-plus-function claiming under 35 USC § 112, ¶ 6?

Will Deference Create Uncertainty?

While I understand that de novo review of claim construction often is blamed for driving up the costs of patent litigation, I have concerns about the uncertainty that could arise if the final word on claim construction could come from any single district court judge rather than a panel of three of the sixteen judges of the Federal Circuit. Predictability is important not only to parties likely to be involved in litigation, but also to entities assessing freedom-to-operate, considering design-around options, or evaluating licensing deals.