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].

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 5.1 Service.

5. PRACTICE

(a) Manner of Service. Service may be personai 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 5.2 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.

Inauguration Day, every fourth year.

Washington's Birthday, third Monday in Febru

ary.

Memorial Day, last Monday in May.
Independence Day, July 4.

Labor Day, first Monday in September.

Columbus Day, second Monday in October. Veterans Day, fourth Monday in October. Thanksgiving Day, fourth Thursday in Novem

ber.

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.

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 filed.

(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 filed, 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 CopiesComposition-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 filed 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.

(f) Consolidation of Appeals in Single Transcript. When more than one appeal is taken from the same judgment, decision, or ruling, a single transcript shall be printed containing all material designated by the parties without duplication.

(g) Submission on Record Without Transcript. The court may dispense with the requirement of a transcript and may permit cases to be submitted on the record under such conditions as the court may direct.

(h) Translations. Whenever any paper transmitted to this court is in a language other than English, without a translation thereof, made under the authority of the lower tribunal or admitted to be correct, the court may order that a translation be supplied.

Rule 5.7 Visual Aids.

(a) Used Below. The use in oral argument of illustrative models, specimens, samples, charts, diagrams, and other visual aids is encouraged when it facilitates the presentation. When any visual aid was part of the presentation of the case below and is relied on by any party to the appeal, it shall be placed in the custody of the clerk at least 10 days before the case is heard or submitted. Failure to do so will make its subsequent use discretionary with the court.

(b) Not Used Below. When any visual aid was not part of the presentation of the case below, its proposed use shall be brought to the attention of opposing counsel not less than 15 days prior to the date of hearing. Objections, if any, to the use of such aid shall be in writing, served on all adverse parties, and filed in this court not less than 5 days prior to the hearing date. Use of such aid will be discretionary with the court. This rule shall not preclude agreement of counsel respecting the use of visual aids, or the use of a chalkboard or the equivalent during oral argument.

(c) Disposition. All visual aids in the custody of the clerk, other than official exhibits, must be removed by the parties within 90 days after the case is finally decided. If they are not removed within said period, the clerk may dispose of them.

Rule 5.8 Appearance of Printed Transcripts, Briefs, Motions, and Other Papers.

(a) In General. All transcripts, briefs, motions, and other papers printed for the use of the court may be produced by standard typographic printing or by any process capable of producing a clear black permanent image. Carbon copies of any records or briefs may not be submitted without permission of the court. All printed matter except covers must appear in at least 11 point type on opaque, unglazed paper. If footnotes are included, they may not be printed in type smaller than 9 point. Plastic and metal ring-type bindings are not acceptable.

(b) Cover-Color. The cover of appellant's brief shall be blue; appellee's red; of an intervenor or amicus curiae, green; of any reply brief, gray. The cover of petitions for rehearing shall be yellow, and the covers of replies thereto shall be brown. The cover of the transcript shall be white. Covers of any

other papers shall be so selected as to distinguish from the above.

(c) Page Size-Customs. The transcript of record and briefs in customs cases shall have pages 6% by 94 inches and type matter 4% by 7% inches.

(d) Page Size-Patent Office. The transcript of record and briefs in appeals from the Patent Office shall have pages 7% by 101⁄4 inches and type matter 4% by 7% inches to permit incorporation of copies of patent and trademark registrations.

(e) Motions, etc. Motions and other papers may be printed at the option of a party and, if printed, the form thereof shall be governed by the provisions of subsections (a), (c), and (d) of this rule.

(f) Failure To Conform. The clerk may refuse to file any transcript, brief, or other paper which has been printed or bound otherwise than in substantial conformity with this rule.

(a) Cover Content. The front cover of each brief shall contain:

(1) At the top, the title of the document and the designation of the party for whom it is filed (e.g., Brief for Appellant). Immediately beneath the title of the document, a heavy black line shall be printed. Beneath the line, the following matter shall be printed:

(2) The name of this court. [See Rule 1.1(a)].

(3) The docket number and title of the case in this court. [See Rule 1.2(b)]. In the title, appellants, appellees, petitioners, respondents, etc., shall be so designated.

(4) The nature of the proceeding in this court and the name of the court, agency, or board from which the appeal is taken (e.g., appeal from Board of Appeals).

(5) The names, addresses, and telephone numbers of all counsel representing the party on whose behalf the document is filed.

(b) Appellant's Brief. Appellant's brief shall contain sections headed and arranged in the following order:

(1) TABLE OF CONTENTS, with page references, followed by a TABLE OF AUTHORITIES including cases, statutes, textbooks, articles, regulations, rules and the like with references to all pages where they are cited.

(2) STATEMENT OF THE ISSUES. The issues presented separately expressed in short and concise terms.

(3) STATEMENT OF THE CASE. The statement shall first indicate briefly the nature of the case and its disposition below including the statutory basis for review of the judgment, decree, order, or ruling in question. A statement of background may be included. There shall follow a statement of the facts relevant to the issues presented for review with references to the pages of the record at which such facts appear.

(4) ARGUMENT. The argument should be opened with a concise summary of argument which states clearly and succinctly the points made in the brief. The points stated should then be used as headings in the body of the argument.

(5) CONCLUSION. A precise statement of all relief sought.

(c) Appellee's Brief. Appellee's brief shall conform generally to the requirements of subsection (b) (15), except that no statement of the issues or statement of the case shall be included unless appellee disagrees with appellant's statements in which event appellee may include restatements as may be deemed necessary.

(d) Reply Brief. A reply brief must be confined to new matter raised in appellee's brief and shall conform generally to the requirements of subsection (b) (1-5).

(e) Citations. Citations of decisions of this court should include the publications in which the decision appears, including, where available, the volume and page of this court's reports, the Federal Reporter, and the United States Patents Quarterly, e.g., General Instrument Co. v. United States, 59 CCPA 171, C.A.D. 1062, 462 F. 2d 1156(1972); In re Nelson, 47 CCPA 1031, 280 F. 2d 172, 126 USPQ 242 (1960). Where reference is made in a brief to certain matters included in the transcript of record, the page number thereof shall be designated as "(R-)."

(f) Length of Brief. The main briefs of the parties shall not exceed 50 pages each. No reply brief shall exceed 25 pages. Pages containing tables of contents, authorities, glossaries, and appendices containing statutes, rules, and the like shall not be counted in determining length.

(g) Cross-Appeals. If a cross-appeal is filed, the party in the position of plaintiff below shall be deemed appellant for purposes of this rule and Rule 5.10 unless the parties otherwise agree or the court otherwise orders. The single main brief of appellee shall contain the issues and argument involved in his cross-appeal as well as the response to the brief of appellant.

Rule 5.10 Filing and Service of Briefs.

(a) Time To File. Appellant's brief shall be served and filed within 60 days after the date on which the transcript is filed. Appellee's brief shall be served and filed within 40 days after service of appellant's brief. Appellant may serve and file a reply brief within 14 days after service of appellee's brief and not later than 5 days prior to hearing. No further briefs may be filed without leave of court.

(b) Number of Copies. 25 copies of each brief shall be filed and 5 copies of each brief shall be served on counsel for each party separately represented.

(c) Extension of Time. No brief will be received after expiration of the time stated in subsection (a) unless such period has been extended as provided in Rule 5.2(d) or good cause is shown.

(d) Consequences of Failure to File Briefs. If an appellant's brief is not filed within the time provided by this rule, or within the time extended, an appellee may ask for dismissal of the appeal or the court may sua sponte dismiss the appeal. If an appellee fails to file his brief, he will not be heard at oral argument except by permission of the court.

Rule 5.11 Briefs of Amicus Curiae.

(a) Filing. A brief of amicus curiae may be filed only if accompanied by written consent of all parties,

or by leave of court on motion under Rule 5.3, and if the brief is presented within the time allowed for the filing of the brief of the party supported. When the United States is not a party, consent or leave need not be obtained when the brief is presented for the United States or any agency thereof.

(b) Motion for Leave. A motion for leave to file shall be served on all parties, shall identify the interest of the movant and shall state the reasons why a brief of amicus curiae is desirable and the relevance of such reasons to the disposition of the case. A party served with such a motion may, within 10 days thereafter, file an objection thereto.

(c) Content. All briefs, motions, and replies filed under this rule shall comply with Rules 5.8, 5.9, and 5.10, except that as to content it shall be sufficient to set forth the interest of amicus curiae, the argument, and the conclusion.

Rule 5.12 Calendaring and Disposition of Cases.

(a) Notice of Argument. The clerk shall prepare, under the direction of the court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, he shall give preference to appeals and other proceedings entitled to preference by law. The clerk shall give notice to all interested parties of the date assigned for the hearing and shall publish a hearing list in advance of each session.

(b) Expedited Hearing. The court may on motion showing good cause of sua sponte advance the date for the hearing of any case and may allow the filing of typewritten briefs in lieu of printed briefs in cases so advanced.

(c) Disposition on Briefs. Whenever the court, sua sponte, or upon agreement of the parties, concludes that a case is of such character as not to require oral argument, it may, after notice to the parties, proceed to disposition of the case without such argument. In such event, opportunity will be given to respond to a reply brief if one has been filed. Notwithstanding an agreement of the parties to waive oral argument, it may, after notice to the parties, be argued.

(d) Disposition on the Record. Whenever the court, sua sponte, or upon agreement of the parties, concludes that a case is of such character as not to require oral argument or briefs and may be decided on the record, the case may be designated for expedited disposition on the record. The clerk will notify the parties of said designation.

(e) Cross-Appeals. A cross-appeal shall be argued with the initial appeal.

(f) Frivolous Appeals. If upon review it shall appear to the court that an appeal is frivolous and entirely without merit, the appeal will be dismissed.

(g) Opinions-Publication. All opinions accompanying decisions of this court shall be provided to the parties, shall be public records of the court and shall be accessible to the public unless based upon proceedings held in camera or where a motion to seal the record has been granted under Rule 5.13(g). Opinions which do not add significantly or usefully to the body of law or would not have precedential value will not normally be published. Unpublished opinions shall not be cited as precedent and will not be accepted as such by this court except in support

of a claim of res judicata, collateral estoppel, or law of the case.

Rule 5.13 Oral Argument.

(a) Number of Counsel. Not more than two counsel will be heard for each side in the argument of a case, except by special permission of the court.

(b) Order of Argument. Appellant shall be entitled to open the argument and to conclude it if time remains. Where there is a cross or a third party appeal, the court will advise which party is to open and close.

(c) Time Allowed for Argument. The court will allow such time for oral argument as shall appear to it to enable a fair presentation of the questions involved. Counsel need not use the full time requested or allowed in any appeal and the court may terminate any argument whenever in its judgment further argument is unnecessary. Unless otherwise provided, the maximum time for oral argument shall be as follows:

(1) Customs Appeals: 30 minutes for appellant and 20 minutes for appellee.

(2) Patent Interference Appeals: 30 minutes for appellant and 20 minutes for appellee.

(3) Inter Partes Trademark Appeals: 20 minutes for appellant and 15 minutes for appellee.

(4) Ex Parte Trademark Appeals: 15 minutes for each side.

(5) All Other Appeals: 20 minutes for each side. (d) Additional time. Counsel may request additional time, not to exceed 15 minutes, by motion filed at least 10 days prior to the date fixed for hearing, stating why the case cannot be adequately presented within the time limitation.

(e) Amicus Curiae Argument. Amicus curiae may, with the consent of a party, argue orally on the side of such party, provided that the maximum time permitted under subsection (c) of this rule for oral argument by such party is not extended. Absent such consent, argument by amicus curiae may be made only by special leave of court.

(f) Non-Appearance. If appellee fails to appear at the argument, the court will hear argument on behalf of appellant. If appellant fails to appear, the court may hear argument on behalf of appellee. If neither party appears, the appeal will be decided on the briefs.

(g) In Camera Proceeding. In a proper case, where the interests of justice require, and on a convincing showing thereof by motion properly made, the court will sit in camera, or seal its record, or both.

(h) Opening. In all cases a full and fair opening must be made.

Rule 5.14 Form of Typewritten Papers.

All papers permitted by these rules to be presented without being typographically printed or otherwise duplicated shall be typewritten upon opaque, unglazed paper 81⁄2 by 11 inches, the typing on each page beginning not less than 11⁄2 inches from the top, with side margins of not less than one inch, and the pages stapled or bound only at the upper left hand corner without backing. [See Rule 5.8 (a)]. The typed matter, except quotations, must be double spaced.

Rule 5.15 Fees.

Pursuant to 28 USC 1926, the fees to be charged by the clerk of this court are fixed as follows: (1) for docketing a case on appeal or review or docketing any other proceeding, except when an appeal is taken by the United States when no payment of fees shall be required___ $50.00 (2) for making a copy, except a photocopy, of any record or paper and comparison thereof, per page---For making a photocopy of any record or paper, per page---For comparing for certification a copy of any record or paper when such copy is furnished by person requesting its certification, per page--

For comparing with the original
thereof any photocopy of any
record or paper, when furnished
by the person requesting its cer-
tification, per page--.

(c) a journal or docket entry, or any other paper, per page--‒‒‒

1.00

.50

.10

.05

1.00

1.00

10.00

(4) for each certificate of membership in the bar..

(5) for an admission to the bar and certificate thereof___

Rule 6.1

6. DISPOSITION OF CAUSES Petition for Rehearing.

A petition for rehearing may be filed within 20 days after entry of judgment. The petition shall comply with the printing and service requirements of Rules 5.8, 5.9 and 5.10. It shall be limited to and state points of law or fact which the petitioner believes the court has overlooked or misapprehended and shall not reargue points already considered by the court. Except by permission of the court, a petition for rehearing shall not exceed 10 pages if produced by standard typographic printing or 15 pages if by any other process. Oral argument on the petition is not permitted. Any opposition to the petition must comply with the printing and service requirements for the petition and be filed within 10 days from date of service of the petition.

Rule 6.2 Mandates.

(a) When Issued. Mandates shall issue to the lower tribunal after 21 days from the date of judgment. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition. If the petition is denied, the mandate shall issue 7 days after denial of the petition. A copy of the opinion or order of the court shall accompany the mandate.