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Justin E. Gray

IP Litigation Attorney at Foley & Lardner LLP

Former Adjunct Professor at Northwestern University School of Law

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Cybor Watch: Federal Circuit Will Reconsider En Banc De Novo Claim Construction Review

Lighting Ballast Control LLC v. Philips Electronics North America Corporation (Fed. Cir. Mar. 15, 2013)

In this case, the Federal Circuit (en banc) has agreed to reconsider the de novo review of claim construction under Cybor Corp. v. FAS Techs., Inc.  The Court has directed the parties and amici to address three 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?

Defendant-Appellant's en banc brief is due in 45 days from today, with Plaintiff-Cross Appellant's response brief is due 30 days after service of Defendant-Appellant's en banc brief.  Defendant-Appellant's reply brief is due 15 days after service of the response brief.

The Federal Circuit has invited the views of the USPTO as amicus curiae and has stated that briefs of other amici curiae will be entertained.