Some appellate courts use en banc review to wipe away decisions that might generate Supreme Court interest. The U.S. Court of Appeals for the Federal Circuit seems to use it to set a collision course.
Last spring the court on its own motion skipped a three-judge panel decision so it could immediately consider en banc whether it should overrule two precedents concerning patent exhaustion— Mallinckrodt v. Medipart and Jazz Photo v. International Trade Commission—in light of more recent U.S. Supreme Court decisions that appeared to call them into question. An army of amici curiae weighed in, including the U.S. government.
