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.

-Gene

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).