Martek Biosciences v. Nutrinova and Lonza (Fed. Cir. 2009)
Expanded Panel: It appears that the expanded panel was prompted in-part as a show dignitaries who were visiting the court. The court claimed authority under 28 U.S.C. 46(b) which indicates that the “Federal Circuit . . . may determine by rule the number of judges, not less than three who constitue a panel.” There is a problem with this authority. The statute calls for the court to create a “rule” for determining the number of judges. Rather than following a rule, however, the expanded panel here appears to be an ad-hoc creation.
CAFC Ruel 47.2(a) says that "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." I suppose the rule allows for ad hoc determination of the size of the panel, but it *is* a rule.
The Martek case was argued on 4/21/2009 and was the first case of the day. In the mp3 for the audio of arguments, Judge Newman acknowledges the guests and then the argument gets started. No mention of why they went with 5 judges. The CAFC announcement page http://www.cafc.uscourts.gov/archive.htm indicates that April 20-21 was the 5th International Judges Conference on IP Law, and that "Conference attendees will have the opportunity to attend three oral arguments at the Federal Circuit on Tuesday morning, April 21st."