Yesterday, the Federal Circuit issued a Notice of Adopted Amendments to the Federal Circuit Rules of Practice. In it, the court amends 18 Federal Circuit Rules of Practice. The new amendments will take effect on March 1, 2023. Here is the full text of the announcement and a summary of the amendments.
Pursuant to 28 U.S.C. § 2071(b) and Federal Circuit Rule 47(a), the United States Court of Appeals for the Federal Circuit has adopted amendments to Federal Circuit Rules of Practice 25, 26, 27, 28, 28.1, 30, 31, 32, 33, 33.1, 34, 35, 39, 40, 41, 47.4, 47.5, and 47.6. The court received and reviewed public comments on the proposed amendments, and the court has ordered the adoption of the proposed amendments, as amended, effective March 1, 2023.
The court’s website contains the court’s order adopting these amendments, a draft proof copy of the Federal Circuit Rules of Practice, a summary of the adopted amendments, and an explanation of substantive modifications to the proposed amendments following the public comment period.
The final version of the Federal Circuit Rules of Practice incorporating these amendments will be available on the court’s website by February 27, 2023. As part of the implementation of these amendments, the Clerk’s Office will be providing additional information and updates to materials on the court’s website, including court forms, by March 1, 2023.
The full notice is available on the court’s website.
Summary of Amendments
1. Fed. Cir. R. 25: decreasing the required number of paper copies on rehearing or
hearing en banc.
2. Fed. Cir. R. 26: codifying the day after Thanksgiving as an official court holiday.
3. Fed. Cir. R. 27: clarifying that requests for reconsideration of dispositive orders
must be filed as rehearing petitions with limited exceptions.
4. 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 the jurisdictional statement in informal response briefs; adding Practice Note
to address inclusion of patents in the addendum.
5. Fed. Cir. R. 28.1: adjusting citation to FCR 28 to correspond with new addendum
subsection.
6. 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; adding Practice Note to
address inclusion of patents in the appendix; requiring service of a paper copy of
the appendix on opposing principal counsel unless counsel deems it unnecessary.
7. Fed. Cir. R. 31: eliminating separate briefing schedule for informal briefing;
requiring service of a paper of the appendix on opposing principal counsel unless
counsel deems it unnecessary.
8. 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.
9. Fed. Cir. R. 33: eliminating settlement negotiation certification requirement;
adding language encouraging use of the mediation program and apprising court of
ongoing settlement discussions; merging mediation provision of Fed. Cir. R. 33.1
into 33.
10. Fed. Cir. R. 33.1: deleting the rule and merging mediation language into Fed.
Cir. R. 33 and docketing statement language into Fed. Cir. R. 47.6.
11. 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; requiring arguing counsel to
have copies of each brief and appendix close at hand at oral argument; adding
Practice Note encouraging parties to have paper copies at oral argument.
12. Fed. Cir. R. 35: aligning with change to FCR 25 to decrease required number of
paper copies.
13. Fed. Cir. R. 39: adjusting citations to rules for copies taxable in the bill costs.
14. Fed. Cir. R. 40: aligning with change to FCR 25 to decrease required number of
paper copies.
15. Fed. Cir. R. 41: adjusting the types of orders that will constitute the mandate.
16. Fed. Cir. R. 47.4: citing to FCR 47.5 for related case requirement in certificate of
interest.
17. 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; adding Practice Note regarding use of new court form to satisfy requirement for notice of related case information.
18. Fed. Cir. R. 47.6: creating new rule requiring filing of the docketing statement;
adding Practice Note regarding use of the court’s docketing statement form.