Technically, the CAFC denied the motion for hearing en banc. They granted the motion for rehearing - which means the original 3 judge panel issued a new decision.
In the new decision the claim construction issues were not changed, as far as I an tell. The difference is section VI which denies the defs. argument that EDTA waived positions. In a nutshell, the first EDTA lawyer (replaced when EDTA lost at the district court level) gave almost no reasons in support of its claim construction. The defs. argues that on appeal EDTA cannot give new reasons to support its claim construction.
The CAFC said new reasons are OK, so long as they support the earlier construction, nut new construction is not OK. Here, EDTA did not try and offer new constrcution, just new reasons supporting the old construction. That was held to be OK.
From the court - "Applying the doctrine of judicial estoppel, IGE is precluded from changing its claim construction position on appeal from any position that it successfully advanced at the district court. The petitioning appellees, however, do not allege that IGE succeeded at trial and then reversed its position, and we perceive no such infraction. Accordingly, we hold that IGE is not judicially estopped from making any of its argument" |
