Federal Circuit Appeals: Jurisdiction, Deadlines and the Federal Circuit Rules

Under 28 U.S.C. § 1295(a), the court has exclusive jurisdiction of, among other things:

• District courts: "an appeal from a final decision of a district court ... in any civil action arising under, or in any civil action in which a party has asserted a compulsory counterclaim arising under, any Act of Congress relating to patents or plant variety protection" (§ 1295(a)(1)).
• The PTAB: an appeal from a Board decision "with respect to a patent application, derivation proceeding, reexamination, post-grant review, or inter partes review," at the instance of a party who exercised its right to participate in the proceeding (§ 1295(a)(4)(A)).
• The ITC: review of "the final determinations of the United States International Trade Commission relating to unfair practices in import trade" under section 337 (§ 1295(a)(6)).
• The Court of Federal Claims: an appeal from any of its final decisions (§ 1295(a)(3)), including suits against the United States for use of a patented invention by or for the government (28 U.S.C. § 1498(a)).

Who may appeal from the USPTO is set by title 35: an applicant after an ex parte appeal, who may instead bring a civil action under § 145 (§ 141(a)); a patent owner in reexamination, only to the Federal Circuit (§§ 141(b), 306); and any party to an IPR or PGR "dissatisfied with the final written decision" (§§ 141(c), 319). A challenger who appeals a PTAB loss must still show an injury in fact for Article III standing; in Consumer Watchdog v. WARF (2014) the court dismissed an appeal for lack of one.

Sources: 28 U.S.C. § 1295, § 1498; 35 U.S.C. § 141, § 306, § 319; Consumer Watchdog v. Wisconsin Alumni Research Foundation, 753 F.3d 1258 (Fed. Cir. 2014).

• Post-trial motions reset the clock. A timely motion for judgment under Rule 50(b), to amend findings under Rule 52(b), to alter or amend the judgment or for a new trial under Rule 59, and certain others, restart the time to appeal from the order disposing of the last of them (FRAP 4(a)(4)). Another party may cross-appeal within 14 days after the first notice, or within the time otherwise allowed, whichever ends later (FRAP 4(a)(3)).
• PTAB rehearing. A timely request for rehearing resets the 63 days to run from action on the request (37 C.F.R. § 90.3(b)(1)). In an IPR or PGR, a rehearing request is due within 30 days of a final decision (§ 42.71(d)). The statute lets the Director set the time but "in no case less than 60 days" (35 U.S.C. § 142).
• ITC finality. A violation determination goes to the President, who has 60 days to disapprove it for policy reasons; if he does not, it becomes final the day after that period closes, or on the day he approves it (19 U.S.C. § 1337(j)).

Sources: Federal Circuit Rules of Practice (Oct. 6, 2026): FRAP 4, Fed. Cir. R. 15; 28 U.S.C. § 2107, § 2522; 35 U.S.C. § 142; 37 C.F.R. § 90.2, § 90.3, § 42.71; 19 U.S.C. § 1337(c), (j).

The court "adopts various rules and directions for parties, litigants, and counsel to regulate practice before this court" (28 U.S.C. § 2071; FRAP 47; Fed. Cir. R. 47), and the Clerk’s Office publishes them, with the text of each FRAP rule, the matching Federal Circuit Rule and Practice Notes, in a single Rules of Practice PDF on the court’s rules page. A new edition issues after changes to either FRAP or the court’s rules. The edition current on October 19, 2026 is dated October 6, 2026; it incorporates amendments to Federal Circuit Rules 15, 25, 25.1, 30, 32, 39, 46 and 47.6 and Practice Notes 25, 39 and 50.

One change is pending: on July 17, 2026 the court proposed amending Federal Circuit Rule 32(j) to restrict the use of "passim" in a table of authorities, with a Practice Note on Microsoft v. DataTern; if adopted, it would take effect December 1, 2026. Footnotes in the volume flag where the court has changed a FRAP default, as it has for the brief and rehearing deadlines below, so read the FRAP rule and the Federal Circuit Rule together.

Sources: Federal Circuit, Federal & Local Rules of Appellate Procedure; Federal Circuit Rules of Practice (Oct. 6, 2026); Federal Circuit, Rules of Practice Amendments 2026.

The Federal Circuit extends FRAP’s default 40 and 30 days for the principal briefs to 60 and 40; the 21-day reply deadline is unchanged. In a cross-appeal, the appellant’s response and reply brief is due 40 days after the cross-appellant’s brief, and the cross-appellant’s reply 21 days after that (Fed. Cir. R. 31(a)(3)). A motion that would end the appeal suspends the schedule (Fed. Cir. R. 31(c)), and if the appellant files no principal brief the clerk may dismiss the case (Fed. Cir. R. 31(d)). Six paper copies of each brief go to the court (Fed. Cir. R. 31(b)).

In an appeal from the PTAB, the Director transmits a certified list of the record and may intervene in an appeal from an IPR, PGR or derivation proceeding, and the court decides the appeal "on the record before the Patent and Trademark Office" (35 U.S.C. §§ 143, 144).

Sources: Federal Circuit Rules of Practice (Oct. 6, 2026): FRAP 31, Fed. Cir. R. 31 and 32(b); 35 U.S.C. § 143, § 144.

In Teva Pharmaceuticals v. Sandoz (2015), the Supreme Court held that when the Federal Circuit reviews "a district court’s resolution of subsidiary factual matters made in the course of its construction of a patent claim," it "must apply a ‘clear error,’ not a de novo, standard of review," while the ultimate construction remains a legal conclusion reviewed de novo; the Court called review of factual findings for clear error and legal conclusions de novo the "ordinary" standard for courts of appeals. In appeals from the PTAB, the court’s formula is: "We review the Board’s legal determinations de novo, but we review the Board’s factual findings underlying those determinations for substantial evidence" (Dental Monitoring SAS v. Align Technology, Aug. 10, 2026, quoting Valve v. Ironburg). For the ITC, § 1337(c) sends review "in accordance with chapter 7 of title 5."

Sources: Fed. R. Civ. P. 52(a)(6); Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U.S. 318 (2015); Dental Monitoring SAS v. Align Technology, Inc., No. 2025-1752 (Fed. Cir. Aug. 10, 2026); 19 U.S.C. § 1337(c); 5 U.S.C. § 706.

Federal Circuit Rule 36(a) lets the court "enter a judgment of affirmance without opinion, citing this rule," when "an opinion would have no precedential value" and any of five conditions exists:

1. the judgment, decision or order appealed from is based on findings that are not clearly erroneous;
2. the evidence supporting the jury’s verdict is sufficient;
3. the record supports summary judgment, directed verdict or judgment on the pleadings;
4. the decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review; or
5. a judgment or decision has been entered without an error of law.

No separate judgment is prepared; the order itself serves as the judgment when entered (Fed. Cir. R. 36(b)). The rule permits only affirmances. We collect them on our Rule 36 affirmances topic page.

Source: Federal Circuit Rules of Practice (Oct. 6, 2026): Fed. Cir. R. 36 and FRAP 36.

A party may petition for panel rehearing, rehearing en banc, or both in a single combined document. "Panel rehearing is the ordinary means of reconsidering a panel decision; rehearing en banc is not favored" (FRAP 40(a)). An en banc petition must begin with a statement that the panel decision conflicts with a decision of the Federal Circuit, the Supreme Court or an authoritative decision of another court of appeals, or that the case involves a question of exceptional importance (FRAP 40(b)(2)); in the Federal Circuit, counsel must sign one of two prescribed statements of professional judgment (Fed. Cir. R. 40(c)).

• Deadline. FRAP’s default is 14 days after judgment, but the Federal Circuit allows 30 days after entry of judgment, or 45 days if the United States or its officer or agency is a party (Fed. Cir. R. 40(f)(1)).
• Length and response. A petition may not exceed 3,900 words. No response is allowed unless the court asks for one, and ordinarily a petition will not be granted without such a request (FRAP 40(d)).
• Who decides. A rehearing en banc is ordered by a majority of the circuit judges in regular active service (28 U.S.C. § 46(c); FRAP 40(c)). Only the court en banc may overrule a binding precedent, though a party may argue for that in its brief without petitioning (Fed. Cir. R. 40(a)(4)).

En banc patent decisions are rare. A recent one is EcoFactor v. Google (May 21, 2025), in which the en banc court reversed the denial of a new trial on damages in a case where the defendant had challenged the patent owner’s damages expert under Federal Rule of Evidence 702 and Daubert.

Sources: Federal Circuit Rules of Practice (Oct. 6, 2026): FRAP 40, Fed. Cir. R. 40; 28 U.S.C. § 46(c); EcoFactor, Inc. v. Google LLC, No. 2023-1101 (Fed. Cir. May 21, 2025) (en banc).

A Federal Circuit judgment may be reviewed by the Supreme Court "by writ of certiorari granted upon the petition of any party" (28 U.S.C. § 1254(1)). Review "is not a matter of right, but of judicial discretion," and a petition "will be granted only for compelling reasons" (Sup. Ct. R. 10).

• Deadline. A petition is timely if filed within 90 days after entry of the judgment (Sup. Ct. R. 13.1; 28 U.S.C. § 2101(c)). The time runs from the judgment, not the mandate, but a timely petition for rehearing in the Federal Circuit moves the start to the denial of rehearing or the later judgment (R. 13.3).
• Extensions. For good cause a Justice may extend the time by up to 60 days (R. 13.5; § 2101(c)).
• Current rules. The Court’s rules were last revised effective March 16, 2026. Rule 13 did not change; the revisions add stock ticker symbols and party lists for the Court’s conflict checks, and Rule 29.2 now says a document is timely if properly submitted to the Court’s electronic filing system by the last day, with any required paper copies sent within three days.

Sources: 28 U.S.C. § 1254, § 2101(c); Rules of the Supreme Court, effective Mar. 16, 2026: Rules 10 and 13; 2026 revisions to the Rules.

• Using the district court deadline for a PTAB appeal. PTAB appeals run 63 days and are filed with the USPTO Director, not 30 days with a court clerk.
• Counting ITC time from the Commission’s opinion. The 60 days run from when the determination becomes final after the presidential review period.
• Assuming FRAP alone governs. The Federal Circuit changes several FRAP defaults, including brief deadlines and the 30-day rehearing period; check the current Rules of Practice edition.
• Appealing without standing. A petitioner who lost at the PTAB needs a concrete injury to stay in court.
• Hoping for an opinion. If the record plainly supports the result, expect that a Rule 36 affirmance is possible; in our view, the brief should make the error of law or unsupported finding unmistakable.

Sources: 37 C.F.R. § 90.3; 19 U.S.C. § 1337(c), (j); Federal Circuit Rules of Practice (Oct. 6, 2026); Consumer Watchdog v. WARF (Fed. Cir. 2014). Related guides: inter partes review, ex parte reexamination and PTAB vs. district court.