Federal Circuit Rule 30: Appendix to the Briefs

(a) Contents of Appendix; Time for Filing; Number of Copies; Multiple Volumes; Failure to File; Table of Contents.

(1) Contents.

(A) In addition to the material required by Federal Rule of Appellate Procedure 30(a)(1)(A), (B), and (C), the appendix must include the following:

(i) the entire docket sheet, certified list, or index from the proceedings below;

(ii) in an appeal from a jury case, the judge’s charge, the jury’s verdict, and the jury’s responses to interrogatories; and

(iii) in an appeal involving a patent or patent application, any patents or applications at issue on appeal in their entirety. Any other patents included in an appendix must be included in their entirety.

(B) Parts of the record must not be included in the appendix unless they are cited in the briefs. Parties must, however, include in the appendix sufficient surrounding record and transcript pages to provide context for a cited excerpt, as well as the transcript cover page identifying participating counsel if included in the record. Inclusion of unnecessary pages in the appendix is prohibited.

(C) In an appeal from the Patent and Trademark Office, unless the parties agree otherwise, the appendix must include the following:

(i) a copy of all rejected claims that are being appealed from a final decision of the Patent Trial and Appeal Board;

(ii) a copy of all counts in a patent interference appeal or claims involved in a derivation proceeding; and

(iii) a copy of the trademark sought to be registered or cancelled and a copy of any registration relied on to refuse or oppose registration or to seek cancellation of registered mark in a trademark appeal.

(D) If the appellant includes in the appendix material counter-designated by the appellee under Federal Circuit Rule 30(b) that the appellant considers to be included in violation of this rule, the appellant may so advise the appellee and the appellee must advance the costs of including those parts in the appendix.

(E) The following must not be included in the appendix except by leave of the court, and any motion for leave must state the number of pages requested to be included:

(i) briefs and memoranda, except as permitted by Federal Circuit Rule 30(a)(1)(F);

(ii) notices;

(iii) subpoenas — except where the enforcement or validity of a subpoena is at issue;

(iv) summonses — except in appeals from the Court of International Trade;

(v) motions to extend time; or

(vi) jury lists.

(F) Nothing in Federal Circuit Rule 30 prohibits from designation and inclusion in an appendix any of the following:

(i) an examiner’s answer in an ex parte patent case;

(ii) a trademark examining attorney’s appeal brief in an ex parte trademark case;

(iii) briefs and memoranda in a case where the propriety of summary judgment is an issue or where there is an issue of waiver; or

(iv) the notice of appeal.

(2) Time for Filing.

The appellant must serve and file the appendix within seven (7) days after the last reply brief is served and filed. When there is no cross-appeal, if the appellant does not file a reply brief, the appendix must be served and filed within the time for filing the reply brief. In a cross-appeal, if the cross-appellant does not file a reply brief, the appendix must be served and filed within seven (7) days after the time for filing the cross-appellant’s reply brief has expired.

(3) Number of Copies.

Six (6) paper copies of any appendix must be filed with the court in accordance with Federal Circuit Rule 25(c)(3). In appeals where all parties are represented by counsel, an additional paper copy of any appendix must be provided by the filer to principal counsel for the other parties within the same timeframe prescribed by Federal Circuit Rule 25(c)(3) unless principal counsel states that a paper copy need not be provided.

No copies are required to be sent to counsel for amici curiae.

(4) Appendix Volumes.

No appendix volume filed electronically may exceed 400 sheets of paper when printed. Appendices exceeding 400 printed sheets of paper must be divided into separate volumes before filing. A multi-volume appendix must have a volume number in Roman numerals and the pages included in the volume listed at the top of the cover of each volume (e.g., Volume II, Pages 542 to 813). Parties must not include a volume number on the cover of an appendix if that appendix consists of only one volume. A complete table of contents or index must be included in each volume of the appendix.

(5) Consequence of Failing to File an Appendix.

If the appellant fails to file the appendix, the clerk of court is authorized to dismiss the case.

(6) Table of Contents.

In addition to the page of the appendix at which each entry begins, an appendix table of contents must include information identifying how the document was designated in the reviewed tribunal (such as the docket or other record number) and, if applicable, the corresponding exhibit number or letter. If any materials included in the appendix did not have an identifying designation in the reviewed tribunal, the table of contents must include a brief explanation why that is so. If a single explanation applies to all or multiple documents, a single explanation to that effect can suffice.

(b) Preparing the Appendix.

(1) Designation of Material.

The parties must compile a designation of material, consisting of all items in the record and other items required by Federal Circuit Rule 30, from which the appendix will be prepared.

(A) To the extent practicable, the parties must attempt to agree on the designation no later than forty-five (45) days prior to the deadline for the appellant’s principal brief.

(B) If the parties cannot agree within the timeframe, the appellant must serve its designation on the appellee along with a statement of the issues the appellant intends to present no later than thirty (30) days prior to the deadline for the appellant’s principal brief. Within fourteen (14) days after service of appellant’s designation, the appellee may serve on the appellant a counter-designation of additional material, which the appellant must include, or inform the appellant that no additional material needs to be added.

(2) Pagination.

(A) The appellant must assign consecutive page numbers to the designated material and serve on all parties either a table reflecting the page numbers of each item or, if not prohibited by an outstanding protective order, a physical compilation of the material with the assigned page numbers shown.

(B) The first page numbers in the designated material must be assigned to 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. Other items must follow in accordance with Federal Rule of Appellate Procedure 30(d).

(C) The pages of the designated material must be numbered by the automated Bates numbering feature of the software used to convert the document into a PDF and must be in the format required by the clerk of court in the court’s Electronic Filing Procedures.

(3) Extension of Time.

The parties may extend the time to complete the designation without leave of the court; however, the designation and pagination must be completed before the appellant files its principal brief or the parties must move to extend the time to file the brief. If the designation cannot be timely completed due to a pending transcript request, an affidavit detailing what has been done to expedite transcription must be attached to the motion.

(4) Prohibition on Filing.

The parties are prohibited from filing the designation of material and any counter-designation, table of page numbers, or physical compilation with the court.

(5) Preparation of Appendix.

The appellant must prepare the appendix by selecting from the designated material only items required by these rules and pages specifically cited in the briefs of the parties, including the briefs of intervenors and amici. Pages not cited in the briefs — other than items required by these rules — must be omitted from the appendix. If all material designated by the parties comprises no more than 100 pages, the entire designation may be filed as the appendix and combined with the appellant’s principal brief pursuant to Federal Circuit Rule 30(d).

(c) Format of Appendix.

(1) Arrangement of Appendix.

Federal Rule of Appellate Procedure 30(d) governs the arrangement of the appendix, except the 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, must be placed first in the appendix. Pursuant to Federal Circuit Rule 25.1(e)(1)(A), if the appendix must include an excerpt of a statute imposing confidentiality or a judicial or administrative protective order, the excerpt or order must appear before the first page and may be paginated with Roman numerals.

(2) Pagination.

The page numbers in the appendix must be those assigned to the designated material in accordance with Federal Circuit Rule 30(b), and the pages must appear in numerical order. The pages must retain the Bates numbering of the designated material. The page numbers must appear centered in the bottom margin of each page and meet the font size requirements of Federal Rule of Appellate Procedure 32(a)(5).

Other marks must be redacted if necessary to avoid confusion.

Omission of pages need not be noted (e.g., page 102 may be followed by page 230 without stating that pages 103–229 are not reproduced).

(3) Printing.

The court encourages the double-sided printing of the pages of the appendix, an appendix combined with a brief, and an addendum.

(d) Combined Brief and Appendix.

(1) When a brief and appendix are combined, the title on the cover must so indicate.

(2) If either the appendix agreed upon by the parties or the designated material comprises no more than 200 electronic pages or 100 double-sided printed pages, it may be filed together with the appellant’s or petitioner’s principal brief.

(e) Separate or Supplemental Appendix.

Except as provided below, no party may file a separate or supplemental appendix without leave of the court.

(1) Appellee’s Appendix in an Unrepresented Party’s Case.

In cases involving only unrepresented appellants who have failed to participate in determining the contents of the appendix or have filed an inadequate appendix, the appellee may file an appendix containing material permitted by Federal Circuit Rule 30(a). Should the appellee file such an appendix, the appellants may then attach additional material permitted by Federal Circuit Rule 30(a) to any reply brief.

(2) Appendix Filed by the United States as an Appellee or Intervenor.

If all appellants have failed to participate in determining the contents of the appendix or have filed an inadequate appendix, the United States or an officer or agency of the United States, as an appellee or intervenor, may file an appendix containing material permitted by Federal Circuit Rule 30(a).

(3) Cover and Binding.

If a separate or supplemental appendix comprises no more than 200 electronic pages or 100 double-sided printed pages, it may be filed together with the filer’s principal brief. The cover of any separately bound appendix filed by an appellee or intervenor must be red. The cover of any other separately bound appendix must be white.

(4) Pagination.

The pages of a separate or supplemental appendix must be numbered by the automated Bates numbering feature of the software used to convert the document into a PDF and must be in the format required by the clerk of court in the court’s Electronic Filing Procedures. The separate or supplemental appendix need not follow any designated material pagination.

(5) Time for Filing.

Any separate or supplemental appendix must be filed within seven (7) days after the appendix would be due under Federal Circuit Rule 30(a)(2).

(f) Costs.

The costs of the table of page numbers or the copy of the physical compilation of the designated material in Federal Circuit Rule 30(b) may be assessed as provided in Federal Rule of Appellate Procedure 30(b)(2). Costs associated with the inclusion of material under Federal Circuit Rule 30(a)(1)(D) may be recovered.

(g) Appendices Containing Confidential or Sealed Material.

Federal Circuit Rule 25.1 applies to confidential or sealed material in appendices, exhibits, addenda, and attachments.

(h) Unrepresented Party’s Informal Appendix.

An informal brief will be considered filed with an appendix if it includes a copy of the judgment and opinion of the trial court or the final order of an administrative agency. The initial decision of the administrative judge must also be included in the appendix in a Merit Systems Protection Board case. If an unrepresented party chooses to separately file an appendix, then the items noted above must be included if they are not already attached to the informal brief.

(i) Electronic Appendix Material Unable to Be Produced in Paper.

When the record has been perpetuated in whole or in part in an electronic format and that portion of the record cannot be reproduced in a nonelectronic format, those portions of the record that would properly be included in the appendix if they were in documentary form will be considered supplementary appendix material.

(1) Copies.

Four (4) copies must be filed on an electronic medium no later than the time to file the paper copies of the appendix under Federal Circuit Rule 25(c)(3). These copies must be accompanied by a cover letter that includes the case number, short case name, and corresponding appendix page(s).

(2) Statement Concerning Instructions and Malware.

The copies must be accompanied by an affidavit or unsworn declaration under penalty of perjury under 28 U.S.C. § 1746, preferably within or attached to the packaging, that does the following:

(A) sets forth the instructions for viewing the submission and the minimum equipment required for viewing; and

(B) verifies the absence of computer malware and lists the software used to ensure that the submission is free of any malware.

(3) Slip Sheet.

A slip sheet representing the supplementary appendix material must be placed in the electronically filed appendix and corresponding paper copies. The slip sheet must bear proper appendix pagination and be included in the appendix where the material would have appeared. No separate notification is required.

Ed. Note: Refer to the Practice Notes to Rule 30 (Appendix Volumes) for further explanation of this requirement.

The table of contents must still appear before all contents. See Fed. R. App. P. 30(d).

Practice Notes to Rule 30

Notice of New References in Cross-Appellant’s Reply Brief.

To expedite preparing the appendix, a cross-appellant will notify the appellant promptly on being served the appellant’s reply brief whether the cross-appellant will file a reply brief and, if so, whether it will refer to pages not cited in the briefs already filed, listing any such pages.

Dispensing with the Appendix.

A motion to dispense with the appendix will be granted only in extraordinary circumstances.

Testimony in the Appendix.

To reduce bulk in the appendix, the use of condensed, columnar transcripts of testimony is encouraged.

Appendix Volumes.

The limit of 400 sheets of paper per volume for appendix paper copies equates to 800 pages per volume in the electronic version when the paper copies are printed double-sided. Parties should decide on a binding method in advance of electronic filing to ensure even smaller volumes will not be required. There is no minimum number of pages per volume, though the court discourages unnecessary subdivision.

Inclusion of Patents in the Appendix.

Federal Circuit Rule 30(a)(1)(A)(iii) requires the appendix to include patents or patent applications that are the subject of the appeal. Prior art patents or other patents may only be included in the appendix as required by Federal Circuit Rule 30(b)(5).

Inclusion of Reviewed Tribunal’s Numbering Designations.

In addition to including in the appendix table of contents a description of each document (e.g., Answer or Decl. of [first name, last name of expert witness]) and the Appx page number corresponding to the document’s first page, parties should also include any numbering designation that was used by the reviewing tribunal for each document. The purpose of including this information is so that when the Court is reviewing the materials from the reviewed tribunal, such as the reviewed tribunal’s decision or briefs filed there, which necessarily cite documents based on whatever numbering convention is used by the reviewed tribunal, the Court can look to the appendix table of contents as a cross-reference to locate documents based on the reviewed tribunal’s designation. For example, if the reviewed tribunal and parties would have cited a document as Tab 3, the joint appendix should note Tab 3 next to the entry for that document. Or if the reviewed tribunal and parties would have cited a document as Paper 8, that should be included. Or, as yet another example, if a document in the joint appendix would have been cited by the reviewed tribunal and parties as one of two potential docket numbers (e.g., either a sealed or public version), the appendix table of contents should indicate both next to the entry for that document, e.g., ECF No. 81 (sealed); ECF No. 83 (public).