On Feb. 21, the Federal Circuit handed down the awaited decision in Lighting Ballast Control,1 a case scheduled for en banc rehearing to determine the ongoing viability of the Cybor2 doctrine that all patent claim constructions are entitled to de novo review upon appeal. In a split 6-4 decision,3 Cybor lives on. From reading the three opinions,4 the concurrence by Judge Lourie may have the most lasting value. But first, let’s set up the case for you.

Using one of the least-understood amendments to the United States Constitution, the Patent Trial and Appeal Board (PTAB) recently found a new immunity for States and their instrumentalities. It is the latest resurrection of a doctrine I have been involved with over most of my career as a lawyer.