En Banc Updates from the Federal Circuit

3.28.25

EcoFactor v. Google

The U.S. Court of Appeals for the Federal Circuit conducted oral hearing en banc in EcoFactor v. Google (Appeal No. 31-1101) on March 13. The Court reconsidered the admissibility of expert testimony regarding patent damages. The central issue is whether the plaintiff’s damages expert adequately demonstrated the economic comparability of prior license agreements with varied scopes to a hypothetical negotiation between the parties.

The case attracted a number of amicus briefs and gives the Court an opportunity to address the broader question of how courts should assess expert testimony on patent damages, particularly when it involves prior licensing agreements and apportionment. The Court’s en banc rehearing is particularly timely in light of the recent amendments to Rule 702, which clarify the trial judge’s role in ensuring the reliability of expert testimony.

The outcome could significantly impact how damages are calculated and argued in patent litigation, so stay tuned for the Court’s opinion.

Lesko v. United States

The Federal Circuit has sua sponte ordered en banc rehearing for the case of Lesko v. United States (Appeal No. 23-1823). The order was entered after oral argument before Chief Judge Moore, Judge Chen, and Judge Stoll. The Federal Circuit issued this order before issuing an opinion from the panel.

The case originated in the U.S. Court of Federal Claims and involves the interpretation of “officially ordered or approved” under 5 U.S.C. § 5542(a) by the Office of Personnel Management. The Court’s order requests additional briefing regarding the application of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which overruled Chevron deference to an agency’s interpretation of ambiguous language in statutes. Specifically, the Court asked how “officially ordered or approved” should be interpreted considering Loper and whether the “agency is authorized to exercise a degree of discretion” to allow OPM to adopt the writing requirement (and the statutory basis).

This en banc consideration is poised to provide clarity on the statutory interpretation and the extent of agency discretion.

Nathan North | Shareholder