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Federal Circuit Changes Filing Procedures, and That's a Good Thing

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By William Vogeler, Esq. on August 10, 2018 6:57 AM

Briefing just got a little easier in the U.S. Federal Circuit Court of Appeals.

No, it's not any easier to research and write briefs in the complex cases handled by the Federal Circuit. It is still the clearing house for patents, trademarks, and other specialty claims across the country.

But practitioners can now access briefs as soon as they are filed with the court. That helps, especially because the court used to hold onto them for days and nobody could get access.

Electronic Frontier Foundation

The change came after the Electronic Frontier Foundation gave the court a legal nudge. The Federal Circuit used to be the only federal appeals court that disabled public access while the clerk's office reviewed briefs for compliance with court rules.

"Briefs are often withheld for many days because of this practice," the EFF wrote the chief judge in June. "We believe that the Federal Circuit's current policy is unnecessary and violates the public's common law and First Amendment right of access to court proceedings."

Quicker than some courts issue decisions, the Washington DC-based circuit changed its practice. In a release, the clerk's office explained a new "compliance review procedure."

"Following a lengthy internal review, the Clerk's Office is revising its compliance review procedure to simplify the process and to be more transparent with how we process documents," it said.

Compliance Review Procedure

Under the new procedure, attorneys will have five days from notice of non-compliance to file a corrected document. Unrepresented parties will have fourteen days.

Daniel Nazer, who wrote the court to amend its policy, said the old procedure complicated things. He told Courthouse News that attorneys got around the delayed access by working with the parties.

"We've never had to file a brief without reading the (other) briefs, but we've come close a few times," he said.

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