The Strange Case of Martek Biosciences v. Nutrinova

The Federal Circuit has recently issued some highly controversial decisions, such as In re Bilski now before the U.S. Supreme Court. But possibly the strangest this year is Martek Biosciences Corp. v. Nutrinova, Inc.

What makes Martek Biosciences strange is not so much the argument between the majority and dissent about whether the claim term “animal” included humans. Instead, it was the size of the Federal Circuit panel involved. Normally, the Federal Circuit sits as a panel of three judges to decide a particular case. For more important or significant decisions (such as Bilski), all of the judges the Federal Circuit may sit (en banc) to hear and decide a case.

But the Martek Biosciences panel did not sit in either of these standard configurations. Instead, the Martek Biosciences panel comprised a panel of five Federal Circuit judges. The only explanation for this unusual panel configuration appears in footnote 2: We heard this appeal as a five-judge panel pursuant to our statutory authority under 28 U.S.C. § 46(b), which provides that the “Federal Circuit . . . may determine by rule the number of judges, not less than three, who constitute a panel.” See also Fed. Cir. R. 47.2(a) (“Cases and controversies will be heard and determined by a panel consisting of an odd number of at least three judges, two of whom may be senior judges of the court.”)(see page 86 specifically).

That’s it. No reasons as to why a five judge panel was necessary or desirable to hear this particular case. No citation to any “precedent” or “guidelines” for why or how 28 U.S.C. § 46(b) and Fed. Cir. R. 47.2(a) should be applied to support a five judge panel. Just the bare citation to the statute and the Federal Circuit rule.

But there was existing “precedent” for using 28 U.S.C. § 46(b) and Fed. Cir. R. 47.2(a) to form non-standard Federal Circuit panels to hear a case, as well as what circumstances it might be appropriate in. That was the 2007 appeal in the case of Cienega Gardens v. United States. Cienega Gardens involved a fairly complex “taking claims” case based on the impact of the Emergency Low Income Housing Preservation Act of 1987 and the Low-Income Housing Preservation and Resident Homeownership Act of 1990. A further complication was that there were two separate suits filed in the Court of Claims: the Cienega Gardens suit and the earlier filed Chancellor Manor suit. These parallel suits led to separate appeals to two different Federal Circuit panels.

The 2007 appeal in Cienega Gardens was the result of previous remands in the separate suits by these different Federal Circuit panels to the Court of Claims. The Federal Circuit then consolidated the separate appeals from the remands into the one 2007 appeal. Invoking 28 U.S.C. § 46(b), as well as Fed. Cir. R. 47.2(a), the Federal Circuit created a seven judge panel “[g]iven the interrelation between the two cases and because two separate panels heard the prior appeals.” See footnote 11 at page 17 of the slip opinion in Cienega Gardens.

That the Federal Circuit settled on a panel of seven judges makes complete sense. The total number of judges from the two prior Federal Circuit panels makes six. Add another judge to make the panel an “odd in number” (also a required by Fed. Cir. R. 47.2(a)) and you have seven judges. A perfectly logical result mathematically and jurisprudentially.

But why did the Federal Circuit come up with a panel of five judges to hear Martek Biosciences? There is speculation that this “enhanced” panel in Martek Biosciences was due to some international jurists passing through the Federal Circuit at that time based on a comment made by Judge Newman (one member of the Martek Biosciences panel) during oral argument. But that still begs the question of why there were five judges on this panel. Also, why was there no reference in Martek Biosciences to the earlier 2007 Cienega Gardens case? That may remain a mystery as intriguing and controversial as what Bob Woodward and Scott Armstrong asserted in their book, The Brethren, about how the justices of the Supreme Court unanimously overturned Muhammad Ali’s conviction.


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Join the Discussion

3 comments so far.

  • [Avatar for Gene Quinn]
    Gene Quinn
    September 8, 2009 01:08 pm


    My view is that this is a big issue. The Federal Circuit pretty well does whatever they want, whenever they want, ignores their own precedent and own rules when it suits them. This is just further indication the Court as a whole is willing to make things up as it goes along. The disregard for precedent and standards is ridiculous.


  • [Avatar for EG]
    September 8, 2009 10:50 am


    Thanks for the comment. And a valid question. My concern is not with how many were on the panel, but the basis for the non-standard configuration of 5 (versus the standard 3 or en banc panel of 12). At least the Federal Circuit explained why they used 7 in Cienega Gardens. But we get no explanation in Martek Biosciences why they picked 5, or for that matter any other odd number of judges. (The predecessor CCPA always sat en banc as a panel of 5, but why that would be precedent for 5 in Martek Biosciences escapea me.) That leaves future requests for non-standard numbers for panels “up in the air” (i.e., “subjective”) as to what the standards and guidelines are that control Rule 47(a)(2).

  • [Avatar for Bill  Hollimon]
    Bill Hollimon
    September 8, 2009 08:08 am

    Why is the number of judges such an important issue?