This past Friday, the Federal Circuit issued a Notice of Proposed Amendments to the Federal Circuit Rules of Practice. The court proposes to amend several Federal Circuit Rules of Practice and the Practice Notes to three rules. If adopted, the amendments would take effect on December 1, 2022. While there are many proposed amendments, as a highlight, some of the proposed changes include excluding inside front cover contents from word counts, requiring parties to file argument scheduling conflict notices even in the absence of conflicts, decreasing required number of paper copies, and creating an expanded notice requirement when there are related cases in other tribunals to provide the court with additional information on participating parties, firms, and attorneys. Here is the full text of the announcement, a summary of the proposed amendments, and links to a redlined copy and clean copy of the proposed amendments. Also note that public comments in response to the proposed amendments must be received by the Clerk of Court on or before October 3, 2022.
Pursuant to 28 U.S.C. § 2071(b) and Federal Circuit Rule 47(a), the United States Court of Appeals for the Federal Circuit gives notice that it proposes to amend Federal Circuit Rules of Practice 25, 27, 28, 28.1, 30, 31, 32, 33, 33.1, 34, 35, 40, 41, 47.4, and 47.5, and the Practice Notes to Rules 33.1, 38, and 47.7. The proposed amendments are available on the court’s website. If adopted, the amendments would take effect on December 1, 2022.
Public comments must be received by the Clerk of Court on or before October 3, 2022.
Comments may be submitted by email to FederalCircuitRules@cafc.uscourts.gov or by mail as follows:
Proposed Rules Comments 2022
Clerk’s Office, U.S. Court of Appeals for the Federal Circuit
717 Madison Place NW
Washington, DC 20439
All submitted comments must include the name and either a return email or mailing address for the submitter. Any submitted comments, including the name of the submitter, may be made available to the public unless a submitter specifically requests that either the submitter’s name or comment not be released to the public.
Summary of the Proposed Amendments
1. Fed. Cir. R. 25: Decreasing the required number of paper copies on rehearing or hearing en banc.
2. Fed. Cir. R. 27: Clarifying that requests for reconsideration of dispositive orders must be filed as rehearing petitions with limited exceptions.
3. Fed. Cir. R. 28: Moving the principal brief addendum requirements to their own subsection and addressing multi-volume addenda; requiring a separate heading for the standard of review and clarifying location expectations; clarifying patent claim language on inside front cover of principal briefs and relocating requirement to FCR 32; clarifying informal brief form requirement; requiring separate heading for jurisdictional statement in informal response brief.
4. Fed. Cir. R. 28.1: Adjusting citation to FCR 28 to correspond with new addendum subsection.
5. Fed. Cir. R. 30: Clarifying expectation for inclusion of patent and rehearing orders in the appendix; requiring brief title to identify when it contains an appendix; permitting unrepresented parties to file additional record material attached to a reply brief when the appellee files a separate appendix.
6. Fed. Cir. R. 31: Eliminating separate briefing schedule for informal briefing.
7. Fed. Cir. R. 32: Relocating patent claim language on inside front brief cover requirement to this rule from FCR 28 and permitting single-spacing of this language; excluding inside front cover contents and contents required on the first page of a filing in lieu of a cover from word counts; clarifying informal brief form and type-volume requirements.
8. Fed. Cir. R. 33: Clarifying that settlement discussion obligations do not apply to appellate intervenors.
9. Fed. Cir. R. 33.1: Incorporating Mediation Guidelines docketing statement requirement into the rule and requiring use of the form.
10. Fed. Cir. R. 34: Requiring parties to file argument scheduling conflict notice, even if no conflicts exist; delegating authority to the clerk of court to set scheduling conflict limitations and accept or reject individual conflict dates; clarifying who must file a response to notice of oral argument; clarifying that parties represented by the same counsel can only have one counsel argue.
11. Fed. Cir. R. 35: Aligning with change to FCR 25 to decrease required number of paper copies.
12. Fed. Cir. R. 38: Adding practice note to direct filers to follow Rule 27 when filing motions for sanctions.
13. Fed. Cir. R. 40: Aligning with change to FCR 25 to decrease required number of paper copies.
14. Fed. Cir. R. 41: Adjusting the types of orders that will constitute the mandate.
15. Fed. Cir. R. 47.4: Citing to FCR 47.5 for related case requirement in certificate of interest.
16. Fed. Cir. R. 47.5: Creating expanded notice requirement when there are related cases in other tribunals in order to provide the court with more information on participating parties, firms, and attorneys.
17. Fed. Cir. R. 47.7: Adding practice note to direct filers to follow Rule 27 when filing motions for sanctions in the form of attorney fees.