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TITLE 35.-APPENDIX RULES OF THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS
Effective January 1, 1974
1. THE COURT Rule 1.1 Name Seal.
(b) Seal. 1.2 Clerk
(b) Records. 1.3 Sessions. 1.4 Applicability and Waiver of Rules.
(a) Federal Rules of Appellate Procedure. (b) Applicability.
(C) Waiver. 1.5 Employees and Former Employees Not to Practice.
2. ATTORNEYS AND COUNSELORS 2.1 Admission to the Bar.
3. CUSTOMS, TARIFF, COMMERCE, AND AGRICULTURE CASES 3.1 Appeal—How Taken.
(a) Notice of Appeal.
(b) Assignment of Errors.
(a) How filed.
(a) Time of Transmission.
4. PATENT AND TRADEMARK CASES 4.1 Appeal-Docketing.
(a) Petition. (b) Time to File. (c) Docketing. (d) Fallure to File. Election Under 35 USC 141 and 15
(b) Determination of Contents.
(h) Translations. 5.7 Visual Aids.
(a) Used Below.
(C) Disposition. 5.8 Appearance of Printed Transcripts, Briefs, Motions
and Other Papers. (a) In General. (b) Cover-Color. (c) Page Size Customs. (d) Page Size-Patent Office. (e) Motions etc.
(f) Failure to Conform. 5.9 Briefs—Content.
(a) Time to File.
(d) Consequences of Failure to File Briefs. 5.11 Brief of Amicus Curiae.
(a) Notice of Argument.
(g) Opinions- Publications. 5.13 Oral Argument.
(a) Number of Counsel.
6. DISPOSITION OF CAUSES 6.1 Petition for Rehearing. 6.2 Mandates.
(a) When Issued.
(b) Stay. 6.3 Voluntary Dismissal.
5. PRACTICE 5.1 Service.
(a) Manner of Service.
(b) Proof of Service. 5.2 Time.
(d) Extension. 5.3 Motions.
(e) Procedural Motions. 5.4 Constitutional Questions. 5.5 Agreed Statement. 5.6 Printing of Transcript. (a) Filing of Transcript--Number of Copies—Compo
sition-Service-Multiple Appeals. Page 1381
1. THE COURT
Rule 1.1 Name-Seal.
(a) Name. The name of the court as fixed by Chapter 9 of Title 28 of the United States Code is 2. ATTORNEYS AND COUNSELORS
AND PATENT APPEALS
“United States Court of Customs and Patent Appeals."
(b) Seal. The seal of the court shall contain on its outer edge the legend "Seal of the United States Court of Customs and Patent Appeals" with a star interposed between the end of the word “Appeals" and the beginning of the word "Seal"; and in its center an eagle with spread wings within a border of thirteen stars. The clerk shall be the keeper of the seal which shall be the means of authentication of all records and certificates issued from this court.
Rule 1.2 Clerk.
(a) Office. The clerk's office shall be in Washington, D.C., and shall be open for business daily except on Saturdays, Sundays and legal holidays in the District of Columbia, from 8:30 a.m. to 4:30 p.m. (See Rule 5.2).
(b) Records. The clerk shall have custody of the records of the court and shall keep separate docket records of each matter pending before the court, assigning consecutive docket numbers thereto. Every paper filed shall show its filing date and be entered on the appropriate docket record. Any person may, except where restricted by law or where the court otherwise directs, have access to such records. (See 28 USC 2637). Copies thereof may be obtained on payment of prescribed fees set by the court. (See Rule 5.15). The clerk may permit any original record to be taken from the court upon such statement of need and on such conditions as he may require.
Rule 1.3 Sessions.
Sessions of the court will be held beginning with the first Monday in October of each year and thereafter as announced by the court. Sessions will commence at 10 a.m. Motions for admission to the bar will be entertained at the opening of each session of court. (See Rule 2.1).
Rule 2.1 Admission to the Bar.
(a) Qualification. An attorney who is admitted to practice before the Supreme Court of the United States, the highest court of a state, any United States Court of Appeals, the United States Court of Claims, a United States District Court (including the district courts for Puerto Rico, the Canal Zone, Guam, and the Virgin Islands), the United States Customs Court, or the District of Columbia Court of Appeals, and who is of good moral and professional character is eligible for admission to the bar of this court.
(b) Oath. An applicant shall take or subscribe the following oath or affirmation:
"I, do solemnly swear or affirm that I will demean myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States. So help me God."
(c) By Motion. An attorney may be admitted in open court by appearing personally with a sponsor who is a member of the bar of this court, who states the applicant's qualifications and moves his admission. (See Rule 1.3).
(d) By Certificate. An attorney may be admitted without appearing personally by furnishing the following evidence of his eligibility: (1) a statement, signed by him and a member of the bar of this court, on a form provided by the clerk; (2) a certificate from a court listed in subsection (a) of this rule, showing he is a member of the bar thereof in good standing; and (3) an executed oath on a form provided by the clerk.
(e) Fee. As a condition of admission, an applicant shall pay the fee provided in Rule 5.15, and this shall entitle him to a certificate of admission. Rule 2.2 Appearances.
The filing of a notice or petition of appeal submitted by a member of the bar of this court shall constitute a notice of appearance by said member. It is not necessary for government counsel to file or serve notices of appearance in cases in which the government is a party. A notice or petition of appeal subscribed by a non-member of the bar of this court may be filed, but no further proceedings shall be had with respect thereto, other than dismissal of the appeal, until the filing of a notice of appearance by a member of the bar of this court. Not later than ten days after notice of the docketing of an inter partes appeal, counsel who will represent the appellee or respondent shall file and serve a notice of appearance. A party desiring to appear without counsel may so notify the clerk in writing and shall be deemed to have appeared on his own behalf. Rule 2.3 Suspension-Disbarment.
When it is shown to the court that any member of its bar has been suspended from practice or disbarred in any other court, or has been guilty of conduct unbecoming a member of the bar of the court, he will be subject to suspension or disbarment by the court. The member shall be afforded an opportunity to show
Rule 1.4 Applicability and Waiver of Rules.
(a) Federal Rules of Appellate Procedure. The Federal Rules of Appellate Procedure shall govern any practice or procedure not specifically covered by these rules.
(b) Applicability. The rules set forth in part 3 are applicable to appeals from the United States Customs Court, the Tariff Commission, the Secretary of Commerce, and the Secretary of Agriculture. The rules set forth in part 4 are applicable to appeals from the Patent Office. All other rules are applicable to all appeals filed in this court.
(c) Waiver. On motion and for good cause or at the court's own instance, the court may waive or modify any provision of these rules or waive any provision of the Federal Rules of Appellate Procedure.
Rule. 1.5 Employees and Former Employees not to
Practice. No employee of the court shall engage in the practice of law; nor shall any former employee practice before the court at any time in connection with any case in which the court has made any ruling, or which the court has heard or decided, during his employment.
AND PATENT APPEALS
cause, within such time as the court shall prescribe, why he should not be suspended or disbarred. Upon his response to the order to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no response is made, the court may enter an appropriate order.
3. CUSTOMS, TARIFF, COMMERCE, AND
AGRICULTURE CASES Rule 3.1 Appeal-How Taken.
(a) Notice of Appeal. Any party dissatisfied with any appealable decision of the United States Customs Court, the United States Tariff Commission, the Secretary of Commerce, or the Secretary of Agriculture may have a review of said decision (under 28 USC 2601, 19 USC 1337, Headnote 6 to Schedule 8, Part 4 of the Tariff Schedules of the United States, or 28 USC 1545, respectively) by filing a notice of appeal, in duplicate, in the office of the clerk of this court. A copy of the notice shall be served on the adverse parties. When the United States is the appellant, & copy shall be served on the attorney of record or on the party pro se; in all other cases, a copy shall be served on the appropriate government officials or their designees. (See Rule 5.1). In all cases where the United States is not the appellant, such notice of appeal shall be accompanied by the filing fee specified in Rule 5.15.
(b) Assignment of Errors. The party filing a notice of appeal shall attach to all copies of such notice a concise statement of errors of law and fact complained of. Rule 3.2 Application for Permission to Appeal.
(a) How Filed. The party seeking permission to appeal under 28 USC 1541(b) shall file with the clerk of this court an original and 12 copies of an application which shall include a statement of the facts necessary to an understanding of the controlling question of law determined by the interlocutory order of the United States Customs Court or by the order entered by the chief judge of the United States Customs Court under 28 USC 256 (b), a statement of the issue involved or question presented, and a statement of the reasons why the court should grant the application. The application shall also include or have annexed thereto a copy of the order from which appeal is sought and of any findings of fact, conclusions of law, or opinion relating thereto. If the appellant is the United States, a copy shall be served on the attorney of record or the party pro se; in all other cases, a copy shall be served on the Attorney General and the Secretary of the Treasury or their designees. (See Rule 5.1). In all cases where the United States is not the applicant, the application shall be accompanied by the filing fee specified in Rule 5.15.
(b) Answer in Opposition. Within 10 days after service of the application, an adverse party may file an original and 12 copies of an answer in opposition.
(c) Format. The application and answer thereto may be typewritten but the copies thereof shall be of & clarity equal to that of the original. (See Rule 5.14).
(d) Submission. The application and answer shall be submitted without oral argument unless otherwise ordered.
Rule 3.3 Record on Appeal.
(a) Time for Transmission. Upon the filing of a notice of appeal or the granting of an application for permission to appeal, the clerk of this court shall request the appropriate government official to certify the record and transmit it to this court for filing within 30 days from the date of the request unless the time is extended as provided in subsection (d) of this rule.
(b) Contents of Records. The record to be transmitted shall include (1) pleadings, dispositive motions and related memoranda, stipulations, and testimony, (2) the decision, judgment, or order appealed from, any motion for rehearing and supporting papers, and all opinions, memoranda, findings of fact, or conclusions of law related thereto, (3) all exhibits introduced, (4) a certified copy of the docket sheet, and (5) a certified list of the foregoing documents and exhibits, identified with reasonable definiteness.
(c) Correction or Modification of the Record. Prior to the transmittal of the record, if error or omission therein appears with respect to anything material to the case of either party, the parties by stipulation, or the appropriate tribunal or official, may direct that the error or omission be corrected. After transmittal of the record, all questions as to form and content of the record shall be presented to this court and this court, on motion or on its own initiative, may direct that the error or omission be corrected, and, if necessary, that a supplemental record be certified and transmitted.
(d) Extension of Time for Transmission of Record. An extension of time for transmitting the record may be granted by the court for good cause shown upon application by the appropriate government official referred to in subsection (a) of this rule, within the time originally prescribed.
4. PATENT AND TRADEMARK CASES
Rule 4.1 Appeal-Docketing.
(a) Petition. In appeals from the Patent Office appellant shall file a petition, addressed to the court, praying that the appeal be heard. The petition shall be accompanied by the filing fee specified in Rule 5.15. (See Rule 2.2).
(b) Time to File. Said petition with proof of seryice on opposing counsel and a certified copy of the record in the proceeding shall be filed in this court within 40 days from the date the notice of appeal under 35 USC 142 or 15 USC 1071 (a) was filed in the Patent Office: Provided, That the Commissioner of Patents may for sufficient cause set a new period to end on some definite date; and Provided further, That in inter partes cases appellant shall, at the time of filing said petition, serve a copy thereof upon appellee or his counsel.
(c) Docketing. An appeal will be docketed upon timely receipt of a petition, the filing fee, and a certified copy of the record. The date of docketing and the appeal number will be transmited to counsel promptly thereafter.
(d) Failure to File. Election Under 35 USC 141 and 15 USC 1071(a). If said petition of appeal and copy of said record along with prescribed fee shall not be filed within said period of 40 days, or within the period set by the Commissioner, as above provided, or if a notice of election is filed under 35 USC 141 or 15 USC 1071(a), the Commissioner may take such further proceedings as may be necessary to dispose of the case as though no notice of appeal had ever been given. (See Rule 6.3).
AND PATENT APPEALS
Rule 4.2 Certification and Transmittal of Record.
(a) Transmittal. The Commissioner of Patents shall transmit to this court as the record certified copies of those portions designated by the parties. There shall be included the decision or ruling to be reviewed, together with any opinions or memoranda related thereto; the pleadings, if any; the notice of appeal; and the designations or stipulations of the parties as to the contents of the record. A certificate of the transmitting officer identifying the papers with reasonable definiteness shall accompany the record.
(b) Omissions. In making up the record the Commissioner shall omit the following unless expressly designated by a party to be included:
(1) Face and back of file wrappers; formal indorsements on backs of papers.
(2) Printed letterheadings and the like. Examiners' letters and other office letters need show only the paper number short title, date, address, serial or case number, body of letter, and signature.
(3) Notices of publication, hearings, decisions allowance, receipt of fees, and reference slips, interference cards, and the like except when material to some question raised on the appeal, and then merely a memorandum need be made-e.g., “Memorandum: Notice of allowance mailed to.---address
date (4) A patent or other instrument already included, but reference shall be made thereto by memorandum at the appropriate place, if necessary.
(c) Correction or Modification of the Record. If error or omission with respect to anything material to the case of either party occurs in the record, the parties by stipulation, or the court on motion or on its own initiative, may direct that the error or omission be corrected, and, if necessary, that a supplemental record be certified and transmitted.
Rule 5.2 Time.
(a) Computation. In computing any period of time, the day from which the period begins to run shall be excluded. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.
(b) Legal Holidays. The term "legal holiday" as used in these rules means legal holidays in the District of Columbia, which are:
New Year's Day, January 1.
Washington's Birthday, third Monday in February.
Memorial Day, last Monday in May.
Thanksgiving Day, fourth Thursday in November.
Christmas Day, December 25. Any day designated as a holiday by the President
or the Congress. When a legal holiday falls on Sunday, the next day is a holiday. When a legal holiday falls on Saturday, the preceding day is a holiday.
(c) Service by Mail-Added Time. Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon him and the paper is served by mail, 3 days shall be added to the prescribed period.
(d) Extension. When an action is required or allowed at or within a specified time not set by statute, the court or a judge thereof, or the clerk as provided for in Rule 5.3(e), for cause shown, may, upon motion, (1) order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) permit the action to be taken after the expiration of the specified period where the failure to act was excusable.
5. PRACTICE Rule 5.1 Service.
(a) Manner of Service. Service may be personal or by mail on each adverse party. Personal service includes delivery to a responsible person at the office of counsel, Service by mail is complete on mailing.
(b) Proof of Service. Papers presented for filing and required to be served shall contain an acknowledgment of service by or on behalf of the person served or proof of service in the form of a statement of the date and manner of service and, in the case of personal service, of the name of any person served, certified by the person who made service. Proof of service may appear on or be affixed to the papers filed. The clerk may permit papers to be filed without acknowledgement or proof of service but shall require such proof to be filed promptly thereafter.
Rule 5.3 Motions.
(a) Requirements. An application for an order or other relief shall be made by filing a motion therefor in writing. The motion shall state with particularity the grounds therefor and the relief sought. All motions shall be filed with proof of service and accompanied by a proposed order. If a motion is supported by briefs, affidavits, or other papers, they shall be served and filed with the motion.
(b) Response and Reply. Any party may file a response in opposition to a motion within 10 days after service of the motion. Procedural motions under subsection (e) of this rule may be acted upon at any time, without awaiting a response thereto, but any party adversely affected by such action may request reconsideration, vacation, or modification thereof in accordance with subsection (a). A reply may be filed within 5 days after service of a response. Such reply shall be limited to points newly raised in the response and shall not reargue matters presented in the motion. No further responses or replies may be filled.
AND PATENT APPEALS
(c) Format Number of Copies. Motions, responses, replies and supporting papers, may be typewritten but shall comply with Rule 5.14. If produced by an offset or other printing process they must comply with Rule 5.8(a). Beneath the caption and preceding the body of the motion or supporting paper, there shall be a title succinctly stating the relief sought, for example: “Motion to Extend Time to File Appellant's Brief." An original and at least one copy of all motions, responses, replies and supporting papers, shall be filed.
(d) No Hearing. Unless otherwise ordered by the court, no motion shall be presented and argued in open court except motions presented when the appeal is being argued.
(e) Procedural Motions. The clerk may grant for the court procedural motions which are ordinarily granted, when timely filled, served, consented to or unopposed, and which in the opinion of the clerk would not delay or prejudice the work of the court as follows: to dismiss the appeal, to remand the case, to enlarge the time for filing records, briefs, petitions for rehearing, and supporting papers; to stay mandates; to return records in terminated cases to proper officials; to consolidate cases; to make corrections in briefs or other papers filed in this court; to correct or modify the record; to substitute appearances or parties; and for leave to file briefs in typewritten form or in excess by not more than 10 pages of the page limitations provided by these rules. Any interested party adversely affected by such order shall be entitled to reconsideration thereof by the court if a motion is filed within 10 days after the date of the entry of the order. All other motions shall be decided by the court. Rule 5.4 Constitutional Questions.
Any party challenging the constitutionality of an Act of Congress in any suit or proceeding to which the United States is not a party shall, upon the filing of the record or as soon thereafter as the question is raised in this court, give immediate notice in writing to the court of the existence of said question, specifying the provision of the act being challenged. The clerk shall thereupon notify the Attorney General of such challenge. Rule 5.5 Agreed Statement.
When the questions presented by an appeal to this court can be determined without an examination of all the pleadings, evidence, and proceedings below, the parties may submit an agreed statement of the case in lieu of the record as required by Rule 3.3(b) showing: (1) how the questions arose and were decided in the tribunal from which the appeal is taken; (2) the facts averred and proved or sought to be proved which are essential to a decision of the questions by this court; and (3) a concise statement of the issues to be decided and the points to be relied on by appellant. The statement shall be accompanied by a certified copy of the judgment or ruling appealed from and a certified copy of all opinions, if any, in support thereof.
Rule 5.6 Printing of Transcript.
(a) Filing of Transcript—Number of Copies— Composition Service. Within 90 days after the filing of the record in a customs case or the docketing of a case on appeal from the Patent Office, the appellant shall file 25 printed copies of a transcript of record which shall contain: (1) the relevant docket entries in the proceeding below; (2) relevant pleadings; (3) the judgments, orders, or decisions in question; (4) all appealed claims; (5) counts in interference; and (6) any other parts of the record to which the parties wish to direct the particular attention of the court. Appellant shall serve at least 5 copies of the transcript on each of the other parties to the proceeding. If an agreed statement is filed in accordance with Rule 5.5, 25 copies of said statement and accompanying papers shall be filled as provided above.
Where 2 or more parties appeal as in the case of a cross-appeal or a three party interference proceeding and in the absence of an agreement between the parties, the court will designate who, for the purposes of this rule and Rule 5.10(a), shall be regarded as the appellant.
(b) Determination of Contents. The parties are urged to agree on the contents of the transcript. In the absence of an agreement, appellant shall serve on appellee, not later than 20 days after the filing of the record in a customs case or the docketing of an appeal from the Patent Office, a designation of the parts of the record which appellant intends to include in the transcript. If appellee believes the parts of the record designated by appellant are not sufficient, appellee shall, within 10 days after service of the designation, serve upon appellant a designation of additional parts to be included in the transcript. Appellant shall include the parts thus designated in the transcript. (See Rules 3.3 and 4.2). In designating parts of the record for inclusion in the transcript, the parties shall have regard for the fact that the record on file is available to the court and shall not make unnecessary designations.
(c) Cost of Printing. The cost of producing the transcript shall be paid by the appellant. If appellee shall cause matter to be included in the transcript which appellant considers unnecessary, appellant may move to impose on appellee the cost of printing such matter. A statement of costs for such matter shall be submitted to the clerk. The court will act on the motion concurrently with the final decision. In cases where two or more parties appeal and the parties cannot agree on the apportionment of printing costs, the court will apportion them.
(d) Contents. The transcript shall contain a table of contents listing the parts of the record in the order in which they appear therein. Asterisks shall be used to indicate omissions from original documents. Immaterial formal matters shall be omitted. In testimony, a question and its answer may be contained in a single paragraph. The transcript shall indicate the pages of the original record.
(e) Omission of Relevant Papers. When any part of the record which is material to the appeal is inadvertently omitted from the transcript, the clerk, on the written request of any party, duly served, may allow such material to be printed as a supplement to the transcript or as an appendix to a brief