UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
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`IUNTERNAL OPERATING PROCEDURES
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` TABLE OF CONTENTS
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` SUBJECT
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`INTERNAL OPERATING PROCEDURES (IOPs) AND DEFINITIONS
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`MOTION AND PETITION PRACTICE
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`MERITS PANELS - DISTRIBUTION OF BRIEFS, RECORDS, AND FILES
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`BRIEFS, APPENDICES, AND HEARINGS IN CASES INVOLVING A
`PROTECTIVE ORDER
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`RECUSAL
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`VISITING JUDGES
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`ORAL ARGUMENT
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`PANEL CONFERENCE - AUTHORING ASSIGNMENT
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`DISPOSITION OF CASES - OPINIONS AND ORDERS - VACATE,
`REVERSE, REMAND - COSTS
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`PRECEDENTIAL / NONPRECEDENTIAL OPINIONS AND ORDERS
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`UNIFORMITY OF CITATION
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`PETITIONS FOR PANEL REHEARING
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`IOP#
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` 1
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` 2
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` 3
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` 4
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` 5
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` 6
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` 7
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` 8
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` 9
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`10
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`11
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`12
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`Lilly Ex. 2010 pg. 1
`Sandoz v. Lilly IPR2016-00318
`
`
`FOR THE FEDERAL CIRCUIT
`
`
`
`
`IUNTERNAL OPERATING PROCEDURES
`
`
`
` TABLE OF CONTENTS
`
`
`
`
`
`
` SUBJECT
`
`INTERNAL OPERATING PROCEDURES (IOPs) AND DEFINITIONS
`
`MOTION AND PETITION PRACTICE
`
`MERITS PANELS - DISTRIBUTION OF BRIEFS, RECORDS, AND FILES
`
`BRIEFS, APPENDICES, AND HEARINGS IN CASES INVOLVING A
`PROTECTIVE ORDER
`
`RECUSAL
`
`VISITING JUDGES
`
`ORAL ARGUMENT
`
`PANEL CONFERENCE - AUTHORING ASSIGNMENT
`
`DISPOSITION OF CASES - OPINIONS AND ORDERS - VACATE,
`REVERSE, REMAND - COSTS
`
`PRECEDENTIAL / NONPRECEDENTIAL OPINIONS AND ORDERS
`
`UNIFORMITY OF CITATION
`
`PETITIONS FOR PANEL REHEARING
`
`
`IOP#
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` 1
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` 2
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` 3
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` 4
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` 5
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` 6
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` 7
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` 8
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` 9
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`10
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`11
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`12
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`Lilly Ex. 2010 pg. 1
`Sandoz v. Lilly IPR2016-00318
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`BASES FOR HEARING EN BANC OR REHEARING EN BANC
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`HEARING AND REHEARING EN BANC - DISSOLUTION OF EN BANC
`COURT
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`REMAND FROM SUPREME COURT
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`13
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`14
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`15
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`Lilly Ex. 2010 pg. 2
`Sandoz v. Lilly IPR2016-00318
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`NOTICE
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`Because the Internal Operating Procedures (IOPs) govern internal court procedures, they are
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`not intended to replace or supplement the Federal Rules of Appellate Procedure or the Federal
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`Circuit Rules, which govern procedures in appeals. Counsel should not cite the IOPs in appeal
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`filings or rely on them to avoid controlling statutes or rules.
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`Lilly Ex. 2010 pg. 3
`Sandoz v. Lilly IPR2016-00318
`
`
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`DATE:
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` November 14, 2008
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`IOP #1
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`SUBJECT: INTERNAL OPERATING PROCEDURES (IOPs) AND DEFINITIONS
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`1.
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`IOPs.
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`These “Internal Operating Procedures” (IOPs) cover the essential processes of this court.
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`The court reserves the right to depart from a provision in the IOPs when circumstances require.
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`2. Definitions.
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`“Session” - The sitting of a panel to hear a series of calendared cases over a set period of
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`days.
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`“Court Session” - The period of days in which one or more panels is sitting.
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`“Presiding Judge” - The senior active judge sitting with a merits panel.
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`“Lead Judge” - The motions panel member designated to receive and initially consider
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`motions and their disposition.
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`“Submission” - Occurs immediately after hearing, or on the date a case is submitted on
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`the briefs.
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`“Issuance” - Occurs when the clerk makes an opinion or order available to the parties,
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`public, and subscribers.
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`“Disposition Sheets” - Issued by the clerk, as required, to reflect daily and weekly
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`dispositions.
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`Lilly Ex. 2010 pg. 4
`Sandoz v. Lilly IPR2016-00318
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` IOP #1
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`“Motions Panel” - Three judges assigned on a rotating basis to review motions received
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`during a prescribed month.
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`“Merits Panel” - Three or more judges assigned to consider the briefs, hear oral argument,
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`if any, decide the case, and render an appropriate opinion or opinions. Where appropriate,
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`“merits panel” may be read as including “the court en banc.”
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`“Quorum” - In determining whether a quorum exists for en banc purposes, more than half
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`of all circuit judges in regular active service, including recused or disqualified judges, must be
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`eligible to participate in the en banc process.
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`Lilly Ex. 2010 pg. 5
`Sandoz v. Lilly IPR2016-00318
`
`
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`DATE:
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` November 14, 2008
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`SUBJECT: MOTION AND PETITION PRACTICE
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`IOP #2
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`1. Motions.
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`Each month, the chief judge appoints a three-judge motions panel and designates a lead
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`judge.
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`2. Clerk.
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`(a) Before the appeal has been calendared, the clerk may grant a motion during
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`that period and specified in Fed. Cir. R. 27(h) which contains a representation that the
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`motion has the consent of the parties.
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`(b) After the appeal has been calendared, the clerk shall refer all motions
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`specified in Fed. Cir. R. 27(h) to all members of the merits panel.
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`(c) Notwithstanding representations of consent, the clerk may decline to grant a
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`motion if its allowance would be a substantial divergence from routine practice before the
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`court. The clerk shall refer such a motion to the senior staff attorney (SSA) if the appeal
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`has not been calendared and to the merits panel if the case has been calendared.
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`3.
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`Senior staff attorney.
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`All precalendar motions requiring action by a judge or judges of the motions panel will be
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`delivered by the clerk to the SSA, who shall be responsible for assisting the motions panel in
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`the processing of such motions.
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`Lilly Ex. 2010 pg. 6
`Sandoz v. Lilly IPR2016-00318
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`
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`4.
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`Prepaneling motions.
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`IOP #2
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`The clerk transmits to the SSA a motion or response filed before the case is assigned to a
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`merits panel. In appropriate cases, a motion filed after the principal briefs have been filed may
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`be deferred under the clerk’s signature for consideration by the merits panel and delivered with
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`the briefs and materials in the case. When a motion is under consideration by a motions panel
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`and has not been referred to a merits panel, the lead judge may direct that all papers
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`subsequently filed in relation to that motion will be acted upon by that motions panel. When a
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`motion relates to an appeal that previously was heard by a merits panel and the merits panel
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`remanded the case, the SSA may refer the motion to that merits panel. If that previous merits
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`panel is not available, the SSA may refer the motion to the remaining judge or judges of that
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`panel and one or two newly selected judges.
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`(a) Non-emergency motions.
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`(i) When it is not necessary that a motion be granted or denied before the
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`case can be expected to be assigned to a merits panel, the motion may be deferred
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`for consideration by a merits panel. Though a merits panel need not exist at time of
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`deferral, care should be exercised to avoid both undue delay in disposing of the
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`motion and unnecessary preparation and filing of briefs and appendices resulting
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`from early deferral of a potentially dispositive motion.
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`Lilly Ex. 2010 pg. 7
`Sandoz v. Lilly IPR2016-00318
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`
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`IOP #2
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`(ii) The SSA notifies the clerk of deferral to a merits panel and returns the
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`motions papers to the clerk. The clerk includes a copy of the motions papers with
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`the briefs and materials when they are transmitted to each judge on a merits panel.
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`The motion then will be considered and decided as part of the determination of the
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`merits of the case.
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`(b) Emergency motions.
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` The SSA presents emergency motions promptly to the lead judge, who then elects to
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`decide the motion alone or to obtain a decision by the motions panel.
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`(c) Dispositive motions.
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` Orders disposing of an appeal or a petition (dismissal, summary affirmance, mandamus,
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`etc.) must be acted upon by the full motions panel.
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`(d) Orders.
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`Orders on motions may be signed by a judge or the clerk. Fed. Cir. R. 45(c).
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`5. Oral argument.
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`(a) Oral argument ordinarily will not be granted on prepaneling motions.
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`Nonetheless, a motions panel may elect:
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`(i) To hear oral argument when deemed necessary and the nature of the case
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`so warrants;
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`(ii) To hear oral argument after expiration of its term of service when it has
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`devoted sufficient judge time to make consideration of the motion by a merits panel
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`or other judges an unnecessary duplication; or
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`
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`Lilly Ex. 2010 pg. 8
`Sandoz v. Lilly IPR2016-00318
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`(iii) To be reconstituted as a merits panel for consideration of the motion as
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`IOP #2
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`part of its determination of the case.
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`The chief judge will be notified when (i), (ii), or (iii) is elected.
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`(b) A merits panel may permit oral argument directed to a deferred motion as part
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`of argument on the merits, instructing the clerk to notify counsel whether additional time
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`will be granted for that purpose and the amount of that time.
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`6.
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`Postpaneling, presubmission motions.
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`(a) Motions filed after the briefs and materials have been delivered to a merits
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`panel, but before the case is under submission, will be referred by the clerk to the merits
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`panel, which will decide the motion either before submission or as part of its
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`determination of the whole case after submission.
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`(b) The action chambers on a post-calendar motion shall be that of the judge who
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`has been assigned the responsibility of authoring, or who has authored the opinion. If a
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`post-calendar motion requires action before hearing, the presiding judge of the merits
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`panel will preassign the opinion-authoring responsibility, subject to reassignment after the
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`hearing if necessary. The authoring judge will decide whether to act alone on a motion or
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`to obtain the views of the other merits panel members (in conference or by vote sheet).
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`(c) To avoid premature disclosure of the merits panel membership, orders issued
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`by a merits panel ordinarily will be signed by the clerk.
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`7.
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`Postsubmission motions.
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`All postsubmission motions are referred to the members of the merits panel, and shall not
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`ordinarily be argued. The action chambers shall be that of the authoring judge.
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`Lilly Ex. 2010 pg. 9
`Sandoz v. Lilly IPR2016-00318
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`
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`IOP #2
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`8. Reconsideration.
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`A motion for reconsideration of a decision on a motion is referred to the members of the
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`motions panel or merits panel that decided the motion.
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`9.
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`Petitions for writs of mandamus.
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`Petitions for writs of mandamus will be processed in the manner set forth above with
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`respect to motions.
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`10. Precedential orders disposing of motions.
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`Orders disposing of motions may be made precedential when deemed advisable by the
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`motions panel or merits panel applying the criteria of IOP #10.
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`11. A motions panel that grants a motion to expedite an appeal may decide, by majority
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`vote, to sit as the merits panel. The chief judge shall be notified if a motions panel reconstitutes
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`itself as a merits panel.
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`Lilly Ex. 2010 pg. 10
`Sandoz v. Lilly IPR2016-00318
`
`
`
`DATE:
`
` November 14, 2008
`
`IOP #3
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`SUBJECT: MERITS PANELS - DISTRIBUTION OF BRIEFS, RECORDS, AND FILES
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`
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`1.
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`The chief judge provides to the clerk's office a list of judges that are available for
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`each day of an argument session. The clerk's office runs a computer program that randomly
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`generates three-judge panels for each month, subject to the judges' availability.
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`The clerk's office screens cases to determine if they are calendar-ready, i.e., if all briefs
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`and the joint appendix have been filed. A computer program merges the list of calendar-ready
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`cases in order of filing with panels of judges determined randomly, subject to the requirements
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`of 28 U.S.C. 46(b) and Fed. Cir. R. 47.2(b) ("Assignment of cases to panels will be made so as
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`to provide each judge with a representative cross-section of the fields of law within the
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`jurisdiction of the court."). Cases are generally scheduled for a calendar approximately six
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`weeks after the last brief and the appendix are filed.
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`A case that is remanded by the Supreme Court is referred to the panel or to the en banc
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`court that previously decided the matter, subject to the circumstances provided by IOP # 15,
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`paragraph 2(a). When an appeal is docketed in a case that was previously remanded by this
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`court, or when an appeal concerning attorney fees is docketed after any appeal on the
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`underlying merits is decided, the clerk's office attempts to assign the appeal to the previous
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`panel, to a panel including at least two members of the previous panel (if one of those members
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`was the authoring judge), or to a panel that contains the authoring judge, if such a panel is
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`otherwise constituted and available on a subsequent argument calendar.
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`Lilly Ex. 2010 pg. 11
`Sandoz v. Lilly IPR2016-00318
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`
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`IOP #3
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`A motions panel that decides to expedite an appeal may decide to reconstitute itself as the
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`merits panel. See IOP # 2, paragraph 11. A recusal of a judge may require revisions to the
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`composition of a merits panel. See Fed. Cir. R. 47.11; IOP # 5, paragraph 3. Other
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`circumstances may arise that require substitution of a judge or constitution of a panel in a
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`manner not otherwise provided above.
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`2. Briefs, records, and other case related materials are distributed to the merits panel as
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`early as possible before the hearing date.
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`3.
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`The court’s policy is that briefs will be read by the judges of the panel before oral
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`argument.
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`4. When the appeal is terminated and the mandate has issued, such briefs and materials
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`as are not retained in chambers will be placed in wastebaskets in chambers for discard.
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`5. Briefs and other materials marked UConfidentialU or UProtected MaterialsU and no longer
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`needed in chambers, will be returned to the clerk for supervised destruction after the mandate
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`has issued.
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`Lilly Ex. 2010 pg. 12
`Sandoz v. Lilly IPR2016-00318
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`
`
`DATE:
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` November 14, 2008
`
`IOP #4
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`SUBJECT: BRIEFS, APPENDICES, AND HEARINGS IN CASES INVOLVING
` PROTECTIVE ORDER
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`
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`1. All materials (e.g., briefs, appendices, motions, parts of the record) that are subject
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`to a protective order (see Fed. Cir. R. 11 and 17) shall on receipt be supplied with a large
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`sticker stamped "Confidential" and placed on the front and back of the materials. Protected
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`materials shall be disposed of upon completion of the case according to procedures established
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`by the clerk.
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`2.
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`The senior staff attorney and senior technical assistant shall endeavor to limit
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`circulation of protected materials on an as-needed basis.
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`3.
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`The clerk shall designate persons on his or her staff authorized to process protected
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`materials.
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`4.
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`Protected materials in the clerk’s office shall be stored in a secure area.
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`5. After the case is closed, the clerk will return any original protected materials to the
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`trial tribunal, and will destroy extra copies not required for permanent files of the court.
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`6. A case involving protected materials may be heard in camera, on motion or on sua
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`sponte order of the court.
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`7. Oral argument in camera ordinarily shall be scheduled in a regular courtroom as the
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`last case of a session. Before calling the case, the presiding judge shall order the courtroom
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`cleared of all unauthorized persons. Counsel are solely responsible for persons seated at
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`counsel table. Court employees authorized access to the protective materials, and whose duties
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`require attendance, may remain during the hearing.
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`
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`Lilly Ex. 2010 pg. 13
`Sandoz v. Lilly IPR2016-00318
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`
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`IOP #4
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`8.
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`Electronic recordings of in camera hearings shall be considered and treated as
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`protected materials.
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`9.
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`Public or press inquiries about protected materials or in camera hearings will be
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`referred to the clerk.
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`10. All court personnel shall be sensitive to the confidential nature of protected
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`material.
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`Lilly Ex. 2010 pg. 14
`Sandoz v. Lilly IPR2016-00318
`
`
`
`DATE:
`
` November 14, 2008
`
`SUBJECT: RECUSAL
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`IOP #5
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`1.
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`Judges will consult the certificate of interest (Fed. Cir. R. 47.4) in determining
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`whether a basis for recusal exists.
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`2. Alternatively, a judge may supply the clerk with a written list of circumstances
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`which would require the judge’s recusal, including, e.g., names of businesses or corporations in
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`which the judge or family members have a financial interest, and names of lawyers or law firms
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`whose appearance or participation as counsel would require the judge’s recusal. The clerk will
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`compare the list supplied by a judge with the certificates of interest and names of counsel filed
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`in cases calendared for hearing by a panel on which the judge sits, and will notify the judge of
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`any potential basis for recusal.
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`3. A judge who finds recusal necessary or advisable will, as early as possible, notify
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`the other members of the panel and the chief judge. In preargument/presubmission cases, the
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`chief judge will name a substitute to serve as though originally a member of the panel. When a
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`recusal occurs after a case is argued or submitted, the procedures of Fed. Cir. R. 47.11 will be
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`followed.
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`Lilly Ex. 2010 pg. 15
`Sandoz v. Lilly IPR2016-00318
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`
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`IOP #6
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`DATE:
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` November 14, 2008
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`SUBJECT: VISITING JUDGES
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`
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`1. Visiting judges provide a welcome aid in the work of the court. Their favorable
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`impression is carried throughout the nation. Their contribution of varied viewpoints,
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`experiences, ideas, and information from throughout the judicial system is invaluable.
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`
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`2.
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`Presiding judges will, at the beginning of each court session in which a visiting
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`judge sits, introduce the visiting judge and express the court’s appreciation for his or her
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`assistance to the court.
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`3. While serving with the court, a visiting judge shall be considered and treated in the
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`manner applicable to a member of the court.
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`4.
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`Presiding judges will determine the appropriate seating at the bench in each session.
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`Visiting chief judges will normally be seated at the right of the presiding judge, visiting senior
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`judges normally at the left.
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`5.
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`Presiding judges are responsible for follow-up in relation to votes and opinions due
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`from visiting judges.
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`Lilly Ex. 2010 pg. 16
`Sandoz v. Lilly IPR2016-00318
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`
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`IOP #7
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`DATE:
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` November 14, 2008
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`SUBJECT: ORAL ARGUMENT
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`
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`1.
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`It is the court’s policy that 15 minutes per side be the normal time allocation, and
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`that 30 minutes per side be normally the maximum time allocation. A judge in disagreement
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`with the normal time allocation will so state to the presiding judge. In a case that initially has
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`been designated for no oral argument, oral argument will be held on request of one member of
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`a panel. The presiding judge will notify the clerk of any change in the time allocation, not
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`later than seven days prior to the date of argument, to enable the clerk to notify counsel well
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`before the first day of the panel session.
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`
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`2. Consistent with Fed. R. App. P. 34 and Fed. Cir. R. 34, it is the court’s policy to
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`allow oral argument unless:
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`
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`or
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`
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`(a) The appeal is frivolous; or
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`(b) The dispositive issue or set of issues recently has been authoritatively decided;
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`(c) The facts and legal arguments are presented adequately in the briefs and
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`record, and the decisional process would not be aided significantly by oral argument.
`
`Lilly Ex. 2010 pg. 17
`Sandoz v. Lilly IPR2016-00318
`
`
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`IOP #8
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`DATE:
`
` November 14, 2008
`
`SUBJECT: PANEL CONFERENCE - AUTHORING ASSIGNMENT
`
`
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`1. After a case has been argued, the merits panel will hold at least one conference and
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`will at that conference exchange tentative views and votes. The judges announce a “straw”
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`vote, in reverse order of seniority, on the decision in each case and on whether to employ a
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`precedential opinion, a nonprecedential opinion, or a judgment of affirmance without opinion
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`under Rule 36.
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`
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`2.
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`The presiding judge assigns the authoring responsibility for each case at the end of
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`each day’s sitting or at the end of a session. If the panel is divided, the authoring role is
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`assigned to a member of the majority. If the presiding judge dissents, assignment will be made
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`by the senior active member of the majority.
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`
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`3.
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`Panel members desiring to change authoring assignments shall refer the matter to
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`the presiding judge for decision. The presiding judge will notify the chief judge of any change.
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`
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`4. A merits panel may follow these procedures for cases submitted on the briefs.
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`Alternatively, the panel may conclude that the case is appropriate for a Rule 36 judgment or the
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`presiding judge may preassign the authoring responsibility to a panel member before the panel
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`conference. Under the alternative procedure, a Rule 36 judgment or an opinion may be voted
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`on before the panel conference and may be ready to be issued promptly following the panel
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`conference.
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`Lilly Ex. 2010 pg. 18
`Sandoz v. Lilly IPR2016-00318
`
`
`
`DATE:
`
` November 14, 2008
`
`IOP #9
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`SUBJECT: DISPOSITION OF CASES - OPINIONS AND ORDERS - VACATE,
` REVERSE, REMAND - COSTS
`
`
`
`1.
`
`The court employs only the following means in disposing of matters before it for
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`decision: precedential opinions; nonprecedential opinions; precedential orders; nonprecedential
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`orders; and Rule 36 judgments of affirmance without opinion.
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`
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`2.
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`The court’s decisions on the merits of all cases submitted after oral argument or on
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`the briefs, other than those disposed of under Rule 36, shall be explained in an accompanying
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`precedential or nonprecedential opinion.
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`
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`3.
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`The court's decisions on motions, petitions, and applications will be by precedential
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`or nonprecedential orders.
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`4.
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`The court’s policy is that all opinions and orders shall be as short and as limited to
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`the dispositive issue as the nature of the cases or motions will allow.
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` 5. At the election of the authoring judge, a unanimous or majority opinion,
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`precedential or nonprecedential, may be headed “PER CURIAM.” Rule 36 judgments shall be
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`“PER CURIAM.”
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`6. Copies of all issued opinions and precedential orders shall be provided when issued
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`to all judges of the court, to other participating judges, to the parties involved, and to the
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`tribunal from which the appeal was taken, or which is affected by the order. Copies of Rule 36
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`judgments signed by the clerk will be provided by the clerk to the parties, the trial tribunal, and
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`the members of the panel.
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`Lilly Ex. 2010 pg. 19
`Sandoz v. Lilly IPR2016-00318
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`IOP #9
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`7. All dispositions will be entered by the clerk on the daily disposition sheet. All Rule
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`36 judgments and all opinions and orders, precedential and nonprecedential, are public records
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`of the court and shall be accessible to the public.
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`8. Nonprecedential opinions and orders and Rule 36 judgments shall not be employed
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`as binding precedent by this court, except in relation to a claim of res judicata, collateral
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`estoppel, or law of the case, and shall carry notice to the nonprecedential effect.
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`9.
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`The court will VACATE all or part of a judgment, order, or agency decision when it
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`is being eliminated but not replaced with a contrary judgment or order of this court.
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`The court will REVERSE all or part of a judgment, order, or agency decision when it is
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`being replaced with a contrary judgment or order of this court.
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`The court will REMAND only when there is something more for the trial court or agency
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`to do, and will supply such guidance as the case may warrant.
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`
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`10. Adoption of opinions of trial tribunals.
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`
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`(a) Because a UprecedentialU opinion stating that this court affirms “on the basis of”
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`an opinion of a trial tribunal might cause confusion as to what constitutes UprecedentU in
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`this court, that format will no longer be used in precedential opinions. It is not
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`objectionable in nonprecedential opinions. Except for the provisions (b) and (c) below, a
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`precedential opinion should say enough to supply, in itself without reference to the
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`opinion or order being reviewed, the basis of this court’s decision.
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`Lilly Ex. 2010 pg. 20
`Sandoz v. Lilly IPR2016-00318
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`IOP #9
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`(b)
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`If a trial tribunal’s opinion has been published, and a panel can accept all or a
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`separable part thereof Uas its ownU opinion, the panel may state that it adopts the trial
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`tribunal’s opinion or separable part as its own. If this has been done, the panel’s opinion,
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`when circulated to the court for review, shall be accompanied by a copy of what has been
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`adopted. The panel’s precedential opinion and what has been adopted then constitutes
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`precedent in this court.
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`
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`(c)
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`If a trial tribunal’s opinion has not been published, and a panel accepts all or a
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`separate part thereof as its own opinion in its precedential opinion, the panel will circulate
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`for review and will publish the adopted opinion or separable part, as an appendix to or in
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`the body of the panel’s opinion, with suitable attribution.
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`
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`11.
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`UCostsU.
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`
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`(a) When a panel affirms or reverses a judgment or order in its entirety, or
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`dismisses an appeal, it need say nothing respecting costs, which will be assessed by the
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`clerk automatically against the losing party. A panel that does not wish assessment of
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`costs against the losing party will instruct that costs be assessed as the panel may deem
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`just.
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`
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`(b) When a panel’s decision is other than a total affirmance or reversal (e.g.,
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`affirm in part, reverse in part, vacate, remand) the panel will include in its opinion or
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`order a direction on the award of costs.
`
`
`
`(c) A panel’s direction respecting costs will appear as the last paragraph in this
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`court’s opinion or order and will be headed “COSTS.”
`
`Lilly Ex. 2010 pg. 21
`Sandoz v. Lilly IPR2016-00318
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`(d) The foregoing does not apply to appeals from decisions of the Boards of the
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`Patent and Trademark Office. The clerk will not send forms for designation of costs to
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`parties in such cases.
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`IOP #9
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`Lilly Ex. 2010 pg. 22
`Sandoz v. Lilly IPR2016-00318
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`DATE:
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` July 7, 2010
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`IOP #10
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`SUBJECT: PRECEDENTIAL / NONPRECEDENTIAL OPINIONS AND ORDERS
`
`
`
`1.
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`The workload of the appellate courts precludes preparation of precedential opinions
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`in all cases. Unnecessary precedential dispositions, with concomitant full opinions, only
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`impede the rendering of decisions and the preparation of precedential opinions in cases which
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`merit that effort.
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`
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`2.
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`The purpose of a precedential disposition is to inform the bar and interested persons
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`UotherU than the parties. The parties can be sufficiently informed of the court’s reasoning in a
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`nonprecedential opinion.
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`
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`3. Disposition by nonprecedential opinion or order does not mean the case is
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`considered unimportant, but only that a precedential opinion would not add significantly to the
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`body of law or would otherwise fail to meet a criterion in paragraph 4. Nonprecedential
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`dispositions should not unnecessarily state the facts or tell the parties what they argued or what
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`they otherwise already know. It is sufficient to tell the losing party why its arguments were not
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`persuasive. Nonprecedential opinions are supplied to the parties and made available to the
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`public.
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`4.
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`The court’s policy is to limit precedent to dispositions meeting one or more of these
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`criteria:
`
`
`
`
`
`
`
`
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`(a) The case is a test case.
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`(b) An issue of first impression is treated.
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`(c) A new rule of law is established.
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`(d) An existing rule of law is criticized, clarified, altered, or modified.
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`Lilly Ex. 2010 pg. 23
`Sandoz v. Lilly IPR2016-00318
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`IOP #10
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`
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`(e) An existing rule of law is applied to facts significantly different from those to
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`which that rule has previously been applied.
`
`
`
`(f) An actual or apparent conflict in or with past holdings of this court or other
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`courts is created, resolved, or continued.
`
`
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`(g) A legal issue of substantial public interest, which the court has not sufficiently
`
`treated recently, is resolved.
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`
`
`(h) A significantly new factual situation, likely to be of interest to a wide
`
`spectrum of persons other than the parties to a case, is set forth.
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`
`
`
`
`
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`(i) A new interpretation of a Supreme Court decision, or of a statute, is set forth.
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`(j) A new constitutional or statutory issue is treated.
`
`(k) A previously overlooked rule of law is treated.
`
`
`
`(l) Procedural errors, or errors in the conduct of the judicial process, are
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`corrected, whether by remand with instructions or otherwise.
`
`
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`(m) The case has been returned by the Supreme Court for disposition by action of
`
`this court other than ministerial obedience to directions of the Court.
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`
`
`(n) A panel desires to adopt as precedent in this court an opinion of a lower
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`tribunal, in whole or in part.
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`Lilly Ex. 2010 pg. 24
`Sandoz v. Lilly IPR2016-00318
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`IOP #10
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`5. When a nonprecedential opinion is approved by a majority of the panel and all panel
`
`
`
`votes are in, the authoring judge sends the opinion and any concurring or dissenting opinions to
`
`the administrative services office (ASO) for copying and delivery to the clerk for issuance.
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`When all panel votes are in on a precedential opinion or order, the authoring judge circulates
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`the opinion and any concurring or dissenting opinions, with a transmittal sheet, to each judge.
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`A copy is also circulated to the senior technical assistant (STA), and if requested the STA shall
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`provide information on potential conflicts between the panel-approved opinion and any other
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`prior opinions of the court or other relevant precedents. The nonpanel members of the court
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`will have ten working days to review a circulated opinion or order. Nonpanel members may
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`send comments to the authoring judge, to the panel, or to all judges. A nonpanel member judge
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`in regular active service may submit a hold sheet pending a request for an en banc poll. Absent
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`transmittal of a hold sheet or a request for an en banc poll during the circulation period, the
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`authoring judge sends the opinion, and any concurring or dissenting opinions, to the ASO for
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`copying and delivery to the clerk for issuance.
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`
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`6. An election to utilize a Rule 36 judgment shall be unanimous among the judges of a
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`panel. An election to issue a nonprecedential opinion shall be by a majority of a panel, except
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`when the decision includes a dissenting opinion and the dissenting judge elects to have the
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`decision issued as precedential. These election rights may be made at any time before issuance
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`of an opinion.
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`Lilly Ex. 2010 pg. 25
`Sandoz v. Lilly IPR2016-00318
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`IOP #10
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`
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`7. A request of a panel member or a motion seeking reissuance of an issued opinion or
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`order as a precedential disposition shall only be granted by a unanimous vote of the judges on
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`the merits or motions panel that decided the case or matter. If such request or motion be
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`granted, the author of the opinion shall revise it appropriately.
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`
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`8. Nothing herein shall be interpreted as impeding the right of any judge to write a
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`separate opinion.
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`Lilly Ex. 2010 pg. 26
`Sandoz v. Lilly IPR2016-00318
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`
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`DATE:
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` September 22, 2014
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`SUBJECT: UNIFORMITY OF CITATION
`
`IOP #11
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`
`
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`1. The latest edition of the “Bluebook” (UA Uniform System of CitationU) will
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`ordinarily be followed.
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`2. Citation of opinions to official reports.
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`(a)
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`In citing opinions of this court and its predecessors, cite as found in the
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`UFederal ReporterU:
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`
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`Doe v. Roe, 000 F.3d 333 (Fed. Cir. 2003).
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`Roe v. Doe, 000 F.2d 222 (Fed. Cir. 1982).
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`Goutos v. United States, 522 F.2d 922 (Ct. Cl. 1976).
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`In re Sponnoble, 405 F.2d 578 (CCPA 1969).
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`(b) Cite official reports of the Court of Claims only when the matter cited was not
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`published in the UFederal ReporterU and cite official reports of the Court of Customs and
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`Patent Appeals or the United States Patent Quarterly only when the matter was not
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`published in the UFederal ReporterU:
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`
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`Jones v. United States, 107 Ct. Cl. 806 (1972).
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`Rogers v. Smith, 35 CCPA 47 (1960).
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`In re John Doe, 33 USPQ2d 336 (Fed. Cir. 1999).
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`(c) Cite this court’s opinions in appeals from the Court of International Trade and
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`the International Trade Commission as found in the Federal Reporter; may also cite U.S.
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`Court of Appeals for the Federal Circuit, Int’l Trade Cases (_____Fed. Cir. (T)_____):
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`United States v. Roses, Inc., 706 F.2d 1563, 1 Fed. Cir. (T) 39 (1983).
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`Lilly Ex. 2010 pg. 27
`Sandoz v. Lilly IPR2016-00318
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`IOP #11
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`3. Cite without periods in CCPA (modifies Bluebook).
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`
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`4.
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`In citing opinions of the Court of International Trade, cite as found in the UFederal
`
`SupplementU. Cite official reports of that court, (69 Cust. Ct. 105) or (4 CIT 110), only where
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`the matter cited was not published in the UFederal SupplementU. In citing opinions of the Claims
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`Court, cite as found in UClaims Court ReportsU (Cl. Ct.). For cases appearing in 1 Cl. Ct. 1
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`through 1 Cl. Ct. 129, cite at the first occurrence in this court’s opinion the additional
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`corresponding citation of 550 F. Supp. 669 through 555 F. Supp. 403. In citing opinions of the
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`Court of Federal Claims, cite as found in the UFederal Claims ReporterU (Fed. Cl.).
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`
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`5.
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`In government contract cases, cite published opinions of Boards of Contract
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`Appeals from the pub
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