Federal Circuit Proposes En Banc Rehearing Procedure Changes

On January 10, 2006, The U.S. Court of Appeals for the Federal Circuit proposed a revision to its Internal Operating Procedure 14 on Petitions for Rehearing En Banc. Comments must be received by the close of business on January 31, 2006 with regard to the following three new sentences have proposed for additon:

During the en banc process, even after the normal time for panel action has
expired, but before a majority of the court has voted to take the case en banc,
the panel may reclaim jurisdiction over the petition for the purpose of
modifying the decision or opinion. Following such action, circulation to the
full court of the modified opinion, if precedential, would occur as usual,
within a new 8-day circulation period beginning to run again from the date of
the modification. If the panel changes the opinion or judgment, any party may
take whatever action is available to it in accordance with the provisions of
Fed. R. App. P. 35.

It's too bad that the complete set of IOPs are not already posted on the Federal Circuit's website. Nonetheless, Professor Hal Wegner has already commented that

"With cases such as LizardTech being denied en banc review because of the
difficulty of gaining seven votes, there had been comment within the patent
community about the difficulty of obtaining the votes necessary for en banc
review. With the anticipated senior status of one of the members of the court
two weeks from now, the majority is reduced to six members of the
court. Furthermore, under an amendment this past year to FRAP Rule 35(a),
if one of the judges is disqualified from voting whether to grant an en banc
rehearing, his or her vote does not count in making up a majority. Formerly, the
local court rule required seven of the twelve judges to affirmatively vote for
en banc rehearing, even if one or more of the judges was disqualified from
voting."