It has been almost four years since the Federal Circuit declined to take en banc review of the case Amgen, Inc. v. Hoechst Marion Roussel that would have allowed the court to review its en banc ruling in Cybor Corp v. FAS Techs., Inc., 138 F.3d 1448 (Fed. Cir. 1998). In declining to hear the Amgen case en banc, several of the judges noted that when the right case came along, they would be willing to grant en banc review to reconsider Cybor. [Read].
Judge Clevenger and Judge Moore recently made these comments which seemed to imply discontent with the Cybor precedent during the oral argument of Lincoln National Life Insurance Co. v. Transamerica Life Insurance Co., 2009-1403 (Fed. Cir. June 23, 2010): [Listen].
Judge Moore also made a comment about revisiting Cybor back in 2009 during the oral argument of Kara Technology, Inc. v. Stamps.com, Inc. [Listen].
And, you might recall that the court can take en banc review sua sponte. They did so in Abbott Labs v. Sandoz, Inc., 566 F.3d 1282 (Fed. Cir. 2009) on the limited issue of product-by-process claims, for example.
One wonders if the time is now ripe and whether the vacancies on the court favor granting en banc review of Cybor.
The Cybor decision is available here: [Read].
(I should note that I am not advocating an en banc review of Cybor — just curious if it is coming down the pike.)