Majority of Federal Circuit appears ready to reconsider claim construction standard of reviewNovember 22, 2006

Today the Federal Circuit denied rehearing en banc in Amgen, Inc. v. Hoechst Marion Roussel, Inc., a case dealing with synthetic human erythropoietin, a protein that stimulates red blood cell production. In order to rehear a case en banc, a majority of active judges on the court must vote to rehear the case. There are twelve judges on the Federal Circuit, five of whom voted to rehear this case, thus rehearing was denied. More interestingly, however, was that in the various dissenting and concurring opinions from the denial of rehearing en banc, a majority of the court (seven judges, including Chief Judge Michel and Judges Newman, Rader, Gajarsa, Linn, Dyk, and Moore) showed their willingness to reconsider the Federal Circuit’s position that no deference be given to district court claim construction rulings. This is encouraging news for those that believe the claim construction reversal rate is an area of serious concern at the Federal Circuit.

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