Not since Lighting Ballast has the en banc Federal Circuit issued as remarkable an opinion as in the recent Lexmark case. [FN*]    It will be recalled that in Lighting Ballast the en banc majority “appl[ied] the principles of stare decisis, and confirm[ed] the Cybor standard of de novo review of claim construction, whereby the scope of the patent grant is reviewed as a matter of law. After fifteen years of experience with Cybor, [the majority] conclude[d] that the court should retain plenary review of claim construction, thereby providing national uniformity, consistency, and finality to the meaning and scope of patent claims.”  Lighting Ballast, 744 F. 3d at 1276-1277.  (To be sure, only a majority took this odd view.  Cf. Lighting Ballast, 744 F. 3d at 1296 (O’Malley, J., joined by Rader, C.J., Reyna, Wallach, JJ., dissenting).

Lexmark is even more remarkable. The appellate court boldly reaffirms its view that Jazz Photo Corp.v. International Trade Comm’n, 264 F.3d 1094 (Fed. Cir. 2001), remains good law despite Kirtsaeng v.John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013),  and that Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700 (Fed. Cir. 1992), also remains good law despite Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008).

[FN*]  Lighting Ballast Control LLC v. Philips Electronics North Am. Corp., 744 F. 3d 1272 (CA Fed. 2014) (en banc), overruled, Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 (2015); Lexmark Int’l, Inc. v. Impression Prods., Inc., __ F.3d __ (Fed. Cir. Feb. 12, 2016)(en banc)(Taranto, J.), cert. petition pending sub nom Impression Products, Inc. v. Lexmark International, Inc., Supreme Ct. No. 15‑1189.