In denying rehearing en banc, the Federal Circuit in ePlus v. Lawson Software did not disturb its prior decision that the PTO’s invalidation of a patent can retroactively set aside a contempt order for violating an injunction.

Supporting the prior decision, Judge Dyk said that the underlying injunction was not “final” at the time the claims were cancelled because the Federal Circuit had remanded the case back to the district court. Judge Newman dissented, stating that the patent was both infringed and valid when the injunction was violated. “There is no support in precedent for nullifying judicial rulings of infringement and injunction, retroactively, based on a subsequent decision of the [PTO],” she wrote.

Notably, Judge Moore dissented, criticizing the PTO’s post-grant review procedures, first questioning “the wisdom and propriety” of the broadest reasonable construction standard, and later remarking that the duplicative overlap of district court and post-grant proceedings “is wasteful of judicial, executive, and party resources, and it is just plain unfair.”