Lighting Ballast Control LLC. v. Philips Electronics North America Corp. ( 2013 )

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LIGHTING BALLAST CONTROL LLC,
Plaintiff-Cross Appellant,
v.
PHILIPS ELECTRONICS NORTH AMERICA
CORPORATION,
Defendant,
and
UNIVERSAL LIGHTING TECHNOLOGIES, INC.,
Defendant-Appellant.
__________________________
2012-1014, -1015
__________________________
Appeals from the United States District Court for the
Northern District of Texas in case no. 09-CV-0029, Judge
Reed O’Connor.
__________________________
Before RADER, Chief Judge, NEWMAN, LOURIE, DYK,
PROST, MOORE, O’MALLEY, REYNA, and WALLACH, Circuit
Judges.
PER CURIAM.
ORDER
LIGHTING BALLAST v. PHILIPS ELECTRON 2
A petition for rehearing en banc was filed by Plaintiff-
Cross Appellant Lighting Ballast Control LLC (“Lighting
Ballast”), and a response thereto was invited by the court
and filed by Defendant-Appellant Universal Lighting
Technologies, Inc. (“ULT”).
The petition for rehearing was considered by the pan-
el that heard the appeal, and thereafter the petition for
rehearing en banc, response, and briefs of amici curiae
were referred to the circuit judges who are authorized to
request a poll of whether to rehear the appeal en banc. A
poll was requested, taken, and the court has decided that
the appeal warrants en banc consideration.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for rehearing en banc of Plaintiff-
Cross Appellant Lighting Ballast is granted.
(2) The court’s opinion of January 2, 2013, is vacated,
and the appeal is reinstated.
(3) The parties are requested to file new briefs. The
briefs should address the following issues:
a. Should this court overrule Cybor Corp. v. FAS
Technologies, Inc., 138 F.3d 1448 (Fed. Cir. 1998)?
b. Should this court afford deference to any aspect of a
district court’s claim construction?
c. If so, which aspects should be afforded deference?
(4) This appeal will be heard en banc on the basis of
the additional briefing ordered herein, and oral argument.
An original and thirty copies of new en banc briefs shall
be filed, and two copies of each en banc brief shall be
served on opposing counsel. ULT’s en banc brief is due 45
days from the date of this order. Lighting Ballast’s en
3 LIGHTING BALLAST v. PHILIPS ELECTRON
banc response brief is due within 30 days of service of
ULT’s new en banc brief, and the reply brief within 15
days of service of the response brief. Briefs shall adhere
to the type-volume limitations set forth in Federal Rule of
Appellate Procedure 32 and Federal Circuit Rule 32.
(5) Briefing should be limited to claim construction
and related issues set forth above.
(6) The court invites the views of the United States
Patent and Trademark Office as amicus curiae. Other
briefs of amici curiae will be entertained, and any such
amicus briefs may be filed without consent and leave of
court but otherwise must comply with Federal Rule of
Appellate Procedure 29 and Federal Circuit Rule 29.
(7) Oral argument will be held at a time and date to
be announced later.
FOR THE COURT
March 15, 2013 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Jonathan T. Suder, Esq.
Robert P. Greenspoon, Esq.
Andrew J. Dhuey, Esq.
David A. Skeels, Esq.
Steven J. Routh, Esq.
Sten A. Jenson, Esq.
John R. Inge, Esq.
T. Vann Pearce, Jr., Esq.
Diana M. Szego, Esq.
Nathan K. Kelley, Esq.