The denial of en banc review yesterday in Retractable Technologies, Inc. v. Becton, Dickinson and Co. is a good example of how oral arguments can foreshadow issues at the Federal Circuit. In this previous post “Cybor Watch” , Judge Moore’s comments during oral argument foreshadowed a possible desire to revisit the Federal Circuit’s Cybor decision. Yesterday’s dissents by Judge Moore (joined by Chief Judge Rader) and by Judge O’Malley articulated just such a desire to revisit Cybor.
While the court can revisit the Cybor decision sua sponte, it will be interesting to see if litigants press the issue more aggressively in the future — especially with two spots still to fill on the Federal Circuit’s roster of judges.