Before Prost, Newman, Mayer, Lourie, Dyk, Moore, O’Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll. Petition for panel rehearing and rehearing en banc.

Summary: Judge Newman dissents from the denial of a petition for rehearing en banc, to address the significance of the Federal Circuit’s determination that it does not have jurisdiction in an appeal over Walker Process antitrust claims.

The original Federal Circuit panel determined it did not have jurisdiction in an appeal over a Walker Process monopolization claim because the appealed issues of fraud and inequitable conduct did not present a substantial issue of patent law. KLA-Tencor petitioned for panel rehearing and rehearing en banc; both petitions were denied.

Judge Newman dissented. She believed the original decision was contrary to the statute governing Federal Circuit jurisdiction, as well as contrary to precedent and experience. Judge Newman disagreed that the Supreme Court’s decision in Gunn v. Minton (removing Federal Circuit jurisdiction from a state law legal malpractice action) removed Federal Circuit jurisdiction in Walker Process appeals. Judge Newman took issue with the original panel’s conclusion that “something more” was required to raise a substantial issue of patent law, without further explanation as to what would qualify as “something more.” Judge Newman cited en banc Federal Circuit precedent establishing that the Federal Circuit has exclusive jurisdiction over appeals involving antitrust aspects of Walker Process appeals. Judge Newman stressed that because the panel decision is contrary to the weight of authority, and changes what had been a stable jurisdictional path in Walker Process appeals, at a minimum, en banc review should be required.

Judge Lourie also dissented, without opinion.

This case is: XITRONIX CORPORATION v. KLA-TENCOR CORPORATION [ORDER]