  United States Court of Appeals
      for the Federal Circuit
                 ______________________

          IN RE: AQUA PRODUCTS, INC.,
                      Appellant
               ______________________

                       2015-1177
                 ______________________

 Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2013-
                          00159
                 ______________________

          ON PETITION FOR REHEARING
               ______________________

   Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
  MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN,
             AND HUGHES, Circuit Judges.
                                         ∗


PER CURIAM.
                       ORDER
    Appellant Aqua Products, Inc. filed a petition for re-
hearing and rehearing en banc. A response was invited of
the Intervenor, the Director of the United States Patent
and Trademark Office. 1 The petition and response were



   ∗
       Circuit Judge Stoll did not participate.
   1  The successful petitioner before the Patent Trial
and Appeal Board declined to participate in the appeal to
2                               IN RE: AQUA PRODUCTS, INC.



considered by the panel that heard the appeal, see Fed.
Cir. R. 35 Practice Notes, and thereafter referred to the
circuit judges in regular active service. A poll was re-
quested and taken, and the court decided that the appeal
warrants en banc consideration.
    On consideration thereof,
    IT IS ORDERED THAT:
(1) The petition for rehearing en banc filed by Appellant
Aqua Products, Inc. is granted.
(2) The court’s opinion in In re Aqua Products, Inc., 823
F.3d 1369 (Fed. Cir. 2016) is vacated, and the appeal is
reinstated.
(3) The pending petition for rehearing en banc in Prolitec,
Inc., v. ScentAir Technologies, Inc., 807 F.3d 1353 (Fed.
Cir. 2016), has been stayed by the court pending resolu-
tion of the issues of this rehearing en banc.
(4) The Appellant and Intervenor are requested to file
supplemental briefs. The briefs should address the fol-
lowing questions:
         (a) When the patent owner moves to amend
    its claims under 35 U.S.C. § 316(d), may the PTO
    require the patent owner to bear the burden of
    persuasion, or a burden of production, regarding
    patentability of the amended claims as a condition
    of allowing them? Which burdens are permitted
    under 35 U.S.C. § 316(e)?
        (b) When the petitioner does not challenge
    the patentability of a proposed amended claim, or
    the Board thinks the challenge is inadequate, may
    the Board sua sponte raise patentability challeng-


this court. The Intervenor participated in the appeal and
has responded to the petition for rehearing.
IN RE: AQUA PRODUCTS, INC.                                3



   es to such a claim? If so, where would the burden
   of persuasion, or a burden of production, lie?
Briefing should be limited to these questions.
(5) The supplemental en banc briefs and briefs of any
amici curiae shall be electronically filed in the ECF sys-
tem, and thirty paper copies of each brief shall be filed
with the court. Two paper copies of all filings shall be
served on opposing counsel. Briefs shall adhere to the
type-volume limitations set forth in Federal Rule of
Appellate Procedure 32 and Federal Circuit Rule 32.
(6) The supplemental brief of Appellant must be filed by
noon on Monday, September 26, 2016. Any amicus brief
supporting Appellant’s position or supporting neither
position must be filed by noon on Wednesday, October 5,
2016. Intervenor’s supplemental brief must be filed by
noon on Wednesday, October 26, 2016. Any amicus brief
supporting Intervenor’s position must be filed by noon on
Wednesday, November 2, 2016. Appellant’s reply brief
must be filed by noon on Thursday, November 10, 2016.
No extensions will be allowed.
(7) In addition, the Appellant and Intervenor are directed
to file with the court thirty paper copies of their original
briefs and any Appendix within 17 days from the date of
this Order.
(8) The court invites the views of amici curiae. Any such
briefs may be filed without consent and leave of court, but
otherwise must comply with Federal Rule of Appellate
Procedure 29 and Federal Circuit Rule 29. All amicus
briefs shall be filed as stated above.
(8) The appeal will be heard en banc on the basis of the
original briefs, the supplemental briefs ordered herein,
and oral argument.
(9) Oral argument is scheduled for Friday, December 9,
2016 at 10:00 a.m.
4                       IN RE: AQUA PRODUCTS, INC.



                      FOR THE COURT

    August 12, 2016   /s/ Peter R. Marksteiner
         Date          Peter R. Marksteiner
                       Clerk of Court
