FSC patent case a candidate for Federal Circuit en banc review?

Today, Patently-O discusses an FSC case, Lighting Ballast Control LLC v. Philips Electronics North America Corporation, here, with news of the now-filed petition to the U.S. Court of Appeals for the Federal Circuit, in which Lighting Ballast seeks en banc review. Two weeks ago, Patently-O suggested Lighting Ballast might be “the right case” for en banc review of the court’s earlier authority dealing with the appellate standard of review in claim-construction rulings.

Fifteen years ago, the Federal Circuit held that a district court’s claim-construction findings should be reviewed de novo—that is, without deference to the district court. Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1148 (Fed. Cir. 1998) (en banc). Over the years, Cybor has been widely criticized for undermining and usurping the district court’s unique role in handling mixed fact/law determinations in the area of claim construction.

Lighting Ballast may be the ideal candidate to topple Cybor.  Lighting Ballast was represented by FSC’s Jonathan Suder who in 2011 helped the plaintiff/patentee obtain a unanimous jury verdict of infringement and a $4.6 million final judgment, only to see it reversed by a three-judge panel of the Federal Circuit, whose reversal relied upon Cybor’s no-deference standard of review. The petition for en banc review is an important step for FSC, for its client, and for practitioners and judges who have long called for a more deferential standard of review in claim-construction matters.