Federal Circuit Rule 28: Briefs

(a) Contents and Organization of Principal Briefs.

Principal briefs must contain a cover pursuant to Federal Circuit Rule 32(a), including any required material on the inside cover, and the following in the order listed:

(1) the certificate of interest under Federal Circuit Rule 47.4;

(2) the table of contents;

(3) the table of authorities;

(4) the statement of related cases under Federal Circuit Rule 47.5;

(5) the jurisdictional statement including information demonstrating that the judgment or order appealed from is final or, if not final, appealable on another basis (e.g., preliminary injunction, Federal Rule of Civil Procedure 54(b) certification of final judgment as to fewer than all of the claims or parties, etc.);

(6) the statement of the issues;

(7) the statement of the case, including the citation of any published decision of the trial tribunal in the proceedings;

(8) the summary of the argument;

(9) the argument, including the statement of the standard of review which must appear with its own heading either within the argument section or immediately preceding the argument section;

(10) the conclusion and statement of relief sought;

(11) any addenda required by Federal Rule of Appellate Procedure 28(f), Federal Circuit Rule 28(c), or Federal Rule of Appellate Procedure 32.1(b); and

(12) the certificate of compliance, if required by Federal Circuit Rule 32(b)(3).

(b) Exclusion of Contents from Appellee’s Brief.

An appellee’s statements of jurisdiction, the issues, the case and facts, and the standard of review must be limited to specific areas of disagreement with those of the appellant. Absent disagreement, an appellee must not include those statements.

(c) Addendum Requirements.

(1) Principal Brief.

Unless an appellant or petitioner permissibly binds an appendix with its principal brief pursuant to Federal Circuit Rule 30(d), the principal brief of an appellant or petitioner must include the following material as an addendum bound with the brief:

(A) all judgments, orders, agency actions, or other decisions appealed from and any opinions, memoranda, or findings and conclusions supporting them, including any rehearing opinions or orders; and

(B) if the appeal involves a patent or patent application, all patents or applications at issue on appeal reproduced in their entirety.

(2) Addendum Pagination.

Addendum material that is also designated for inclusion in the appendix must be paginated with the corresponding page numbers assigned to that material under Federal Circuit Rule 30(b)(2)(C). Other addendum material must be paginated in such a way as to avoid confusion.

(3) Addendum Length.

Parties may seek leave of the court to waive the addendum requirement of Federal Circuit Rule 28(c)(1) in whole or in part if the number of pages in the addendum to the principal brief will prevent the materials from being bound in a single volume, which equates to roughly 300 double-sided pages of printed addendum material, or 600 pages submitted electronically. If an addendum will cause the opening brief to exceed one volume, each volume of the brief must include a cover that identifies the volume number in Roman numerals and the range of pages within the volume centered at the top.

(d) Brief Containing Confidential or Sealed Material.

Federal Circuit Rule 25.1 applies to confidential or sealed material in briefs.

(e) Citations.

Opinions of this court and its predecessors should be cited as found in the Federal Reporter. Parallel citations to any other reporters are discouraged. Examples of acceptable citations are:

• Guotos v. United States, 552 F.2d 992 (Ct. Cl. 1976).

• In re Sponnable, 405 F.2d 578 (CCPA 1969).

• South Corporation v. United States, 690 F.2d 1368 (Fed. Cir. 1982) (en banc).

• Doe v. Roe, No. 12-345, slip op. (Fed. Cir. Oct. 1, 1982).

(f) Referring to the Record and Appendix.

Any reference in a brief to the underlying record or to material authorized to be included in an appendix must be to the corresponding appendix page number(s) assigned to the material under Federal Circuit Rule 30(b)(2)(C). References must be as short as possible consistent with clarity and must follow the format required by the clerk of court in the court’s Electronic Filing Procedures.

Indiscriminate references in briefs to blocks of record pages are prohibited.

(g) Unrepresented Party Briefs; Response.

An unrepresented party may file a formal brief or an informal brief, but not both.

(1) Informal Brief.

An informal principal brief must contain the information required by the form prescribed by the court. No other contents are required.

(2) Formal Brief.

A formal brief must comply with Rules 28 and 32 regarding format and contents.

(3) Counseled Party Response Brief.

When the appellant or petitioner files an informal brief, the appellee or respondent may elect to file an informal brief. An informal response brief must contain a statement of the case, but the brief may otherwise follow the format prescribed for the unrepresented party. In an informal or formal response brief, the party must affirmatively state under a separate heading whether the party believes the court has jurisdiction over the case, with reasons provided.

(h) Briefs in a Transferred Case.

When an appeal is transferred to this court by another court of appeals after briefs have been filed, the parties may stipulate to proceed on those briefs instead of filing briefs prescribed by these rules. The stipulation and each brief must be filed with this court within fourteen (14) days after docketing, with the required number of paper copies to be provided in accordance with Federal Circuit Rule 25(c)(3). The court may also order supplemental briefs as needed.

(i) Multiple Parties.

(1) Single Brief.

Each party is permitted to file a single brief of each type authorized for that party by these rules. Private parties with identical or similar interests are strongly encouraged to join in a single brief.

(2) Combined Brief Required.

When there are multiple parties represented by the same counsel or counsel from the same firm, a combined brief must be filed on behalf of all the parties represented by that counsel or firm.

(j) Briefs in Related Cases.

Parties may not file entirely duplicative briefs in related cases. If all or a portion of a brief is duplicative of a brief in a related case, as defined by Federal Circuit Rule 47.5, the filing party must so advise the court at the beginning of the brief or section containing the duplicative content.

Ed. Note: When an appellant permissibly binds an appendix to its brief, the materials listed under Fed. Cir. R. 28(c)(1)(a)-(b) will be included in that appendix pursuant to Fed. Cir. R. 30(a)(1)(A)(iii) and 30(c)(1), thus rendering the separate addendum requirement moot.

Practice Notes to Rule 28

Informal Brief.

Using the court’s Form 11, 12, 13, 14, 15, or 16, whichever corresponds to the type of case, satisfies the requirements of an informal brief for an unrepresented petitioner or appellant under Federal Circuit Rule 28(g). Using the court’s Form 11A satisfies the requirements of an informal response brief for an unrepresented respondent or appellee under Federal Circuit Rule 28(g).

Inclusion of Patents in the Addendum.

The addendum to the appellant’s principal brief under Federal Circuit Rule 28(c)(1) must include only patents or patent applications that are the subject of the appeal. While prior art patents must not be included in the addendum, these patents may still be required to be included in the appendix if referenced in briefing by the parties. See Federal Circuit Rule 30(b)(5).

Reply Brief.

The court prefers that reply briefs respond to the response brief rather than repeating what is in the principal brief. Further, the court favors reply briefs that do not use the full word length when not necessary.