Pressure Products v. Greatbatch: Why Another 5 Judge Panel?

Some may recall my candidate for “Strangest Case of 2009”:  Martek Biosciences Corp. v. Nutrinova, Inc.  See The Strange Case of Martek Biosciences v. Nutrinova .  I now have my candidate (and an early one at that) for the “Strangest Case of 2010”:  Pressure Products Medical Supplies, Inc. v. Greatbatch Ltd.

If someone can divine an answer for this five judge panel from the Pressure Products case, they’re far more clairvoyant than I.  Nothing in the appealed issues in Pressure Products (claim construction, denial of motion for JMOL, leave to amend answer) even remotely hints at or suggests the  basis for this five judge panel.  In fact, Pressure Products has all the markings of a fairly ordinary, garden variety patent infringement case.  So why not the standard three judge panel?  Not a word of explanation.

What I thought made the Martek Biosciences case “strange” in 2009 was the Federal Circuit panel comprised of five judges.  The only explanation for this unusual panel configuration (relative to the standard three judge panel) appeared in footnote 2 of Martek Biosciences:

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.”).

No reasons were given as to why a five judge panel in Martek Biosciences was necessary or desirable to hear that 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.

Pressure Products is even more mystifying for why its Federal Circuit panel comprised five judges: there is absolutely no explanation for this unusual five judge panel configuration in the opinion. No mention (other than listing the names of Judges Newman, Lourie, Rader, Gajarsa, and Moore) that the Federal Circuit panel was even in this unusual configuration. No reference to Martek Biosciences. Not even a bare citation to the statute (i.e., 28 U.S.C. § 46(b)) or even the Federal Circuit rule (i.e., Fed. Cir. R. 47.2(a)) permitting this unusual configuration. Just deafening “silence.”

There was some speculation that the “enhanced” five judge 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 and also a member of the Pressure Products panel) during oral argument. But so far, we don’t even have that clue in Pressure Products. Judge Newman, where are you? We need your help again to explain why the Pressure Products panel comprised five judges (not three)!

© 2010 Eric W. Guttag


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Join the Discussion

5 comments so far.

  • [Avatar for David G. Henry]
    David G. Henry
    April 2, 2010 06:48 pm

    I do not know why our case was chosen for argument during this conference, but something appears to have caught the court’s attention, as our arguments were advanced ahead of any predicted schedule to coincide with this “showcase” of the CAFC in action.

    David G. Henry
    Appelant’s Counsel

  • [Avatar for Tom]
    March 27, 2010 06:50 am

    The other was Fernandez Innova v General Motors, which was affirmed under Rule 36 on May 5, 2009.

    The special session was April 21, 2009. Here is the conference information:

    See the “court summaries” at the bottom.

  • [Avatar for EG]
    March 26, 2010 10:42 pm


    Thanks for the info about this case being heard at the same time as Martek Biosciences. You theory is as good as any I can come up with!

  • [Avatar for Gene Quinn]
    Gene Quinn
    March 26, 2010 06:11 pm


    Do you know which other case was heard that day?


  • [Avatar for Tom]
    March 26, 2010 05:21 pm

    This case was argued during the same session as Martek. That panel heard three cases that day. You already know the “how” (the same authority cited in Martek) and the “when” (during the Internation Judges Conference). As for “why,” well, that we will never know. I’ll hazard a guess: because they felt like it.