On March 15, 2013, in Lighting Ballast Control LLC v. Philips Electronics North America Corp., No. 2012-1014, the Federal Circuit granted Lighting Ballast’s petition for rehearing en banc to decide the following questions: (1) whether the court should overrule Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448 (Fed. Cir. 1998) (en banc) (holding that claim construction, as a purely legal issue, is subject to de novo review on appeal); (2) whether the court should afford deference to any aspect of a district court’s claim construction; and if so, (3) which aspects should be afforded deference.

The question of affording some level of deference to district court claim constructions has been the subject of several dissents in Federal Circuit opinions.  However, as recently as October 2011, the court denied rehearing en banc in Retractable Technologies, Inc. v. Becton, Dickinson and Co., No. 2010-1402, on the same issue and the Supreme Court later denied cert.

Of the 12 judges who decided Cybor, only three — one of whom dissented —are eligible to participate in the en banc rehearing in Lighting Ballast.

Universal Lighting Technologies, Inc., a co-defendant and the appellant, must submit its brief by April 29, 2013.  Oral argument is expected in late summer or early fall.