Thanks to Patent Docs blog for pointing out that on Monday this week Nucleonics sought en banc review of the CAFC decision which held that it no longer had standing to seek a Declaratory Judgment in relation to the validity of Benitec’s gene silencing patent (U.S. Patent No. 6,573,099).
As discussed in my earlier posts, (here and here), the patent is also currently the subject of an ex parte Re-Examination before the USPTO (not inter partes as I had assumed). (As an aside, some jurisdictions would stay the Court proceedings pending the outcome of the patent office review, and I have to say that this can have strategic merit…)
Nucleonics is clearly not satisfied with the CAFC decision, and is perhaps attempting to get the question of standing in Declaratory Judgment actions back before the Supreme Court.
The next big questions is whether the CAFC will entertain an en banc review, which basically requires either (a) conflict with another CAFC decision or a Supreme Court decision, or (b) a question of exception importance.
Stay tuned, this isn’t over by a long shot.