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Biodelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc.

United States Court of Appeals, Federal Circuit

January 13, 2020

BIODELIVERY SCIENCES INTERNATIONAL, INC., Appellant
v.
AQUESTIVE THERAPEUTICS, INC., FKA MONOSOL RX, LLC, Appellee

          Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2015-00165, IPR2015-00168, and IPR2015-00169.

          Kia Lynn Freeman, McCarter & English, LLP, Boston, MA, filed a petition for rehearing en banc for appellant. Also represented by Thomas F. Foley, Wyley Sayre Proctor.

          John Lloyd Abramic, Steptoe & Johnson, LLP, Chicago, IL, filed a response to the petition for appellee. Also represented by Jamie Lucia, San Francisco, CA; Katherine Dorothy Cappaert, Washington, DC.

          Before Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, and Hughes, Circuit Judges. [*]

         ON PETITION FOR REHEARING EN BANC

          ORDER

          PER CURIAM.

         Appellant BioDelivery Sciences International, Inc. filed a petition for rehearing en banc. A response to the petition was invited by the court and filed by appellee Aquestive Therapeutics, Inc. The petition for rehearing and response were first referred to the panel, and thereafter, to the circuit judges who are in regular active service. A poll was requested, taken, and failed.

         Upon consideration thereof, It Is Ordered That:

         The petition for panel rehearing is denied.

         The petition for rehearing en banc is denied.

         The mandate of the court will be issued on January 21, 2020.

          Newman, Circuit Judge, dissenting from denial of the petition for rehearing en banc.

         The court has declined to rehear this appeal en banc. I write because of the significance of the balance of agency and judicial authority, and the rules of procedural law in the administrative state.

         The issue arises from the response of the Patent Trial and Appeal Board to the Federal Circuit's mandate and order to apply the Supreme Court's decision in SAS Institute Inc. v. Iancu, 138 S.Ct. 1348 (2018). In SAS Institute the Supreme Court held that 35 U.S.C. § 318(a) requires that in an inter partes review the PTAB must decide all of the claims and grounds challenged in the petition. Id. at 1354- 58. Since the PTAB had not met this requirement for these cases, our Remand Order instructed:

The Court held that if the Director institutes review proceedings, the PTAB review must proceed "in accordance with or in conformance to the petition," including" 'each claim challenged' and 'the grounds on which the ...

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