images (1)On March 15, 2012, the U.S. Court of Appeals for the Federal Circuit granted rehearing en banc in Lightning Ballast Control LLC v. Phillips Electronics North American Corp. Case No. 2012-1014, -1015. In granting the hearing, the Federal Circuit vacates its earlier January 2, 2013 opinion in the case. The appeal will primarily address the de novo standard of review for claim construction in patent cases.

The petition for rehearing was filed by the Plaintiff-Cross Appellant, Lightning Ballast Control. Of primary focus in the lower court was construction of the claim “voltage-source means.”  The trial court initially construed the claim in the context of a motion for summary judgment and  held that it was a means-plus-function limitation that lacked a corresponding structure. On reconsideration, however, the court decided that voltage source means was not a means-plus-function claim. In a non-precedential opinion, the Federal Circuit reversed the decision of the lower court. It held that the court’s initial ruling was correct and that the means-plus-function claim was indefinite.

Under review en banc, the Federal Circuit will address three significant questions. More specifically, the court will decide whether to overrule its decision in Cybor Corp. v. FAS Technologies Inc. 138 F.3d 1448 (Fed. Cir. 1998). Additionally, it will consider whether to afford any deference at all to a district court’s claim construction and if so, which aspects? The order invites the views of the United States Patent and Trademark Office as amicus curiae. Any other briefs can be filed as well and do not require the consent of the court.

In Cyber Corp., the Federal Circuit adopted a de novo standard of review for claim construction on appeal. It has held that construing the claims of a patent is a pure question of law. The lower court’s conclusion is afforded no deference, including on fact-based questions. This means that the question is always reviewed as if it were being addressed for the first time. Any reversal of the de novo standard of review will likely have a significant effect on future patent litigation.

In all, the oral arguments in the rehearing are likely to take place this summer. The court has not announced whether it will stay appeals involving claim construction until it makes a decision.

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