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Patent Appeals: The Elements of Effective Advocacy in the Federal Circuit

Publisher: Matthew Bender
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Patent Appeals: The Elements of Effective Advocacy in the Federal Circuit authored by Mark Simon Davies: The need for a legal "Elements of Style" aimed at U.S. patent litigators has long been acknowledged by patent law attorneys and judges within the Federal Circuit. The United States Court of Appeals for the Federal Circuit has recently embarked on a campaign to improve the quality of briefing. With Patent Appeals: The Elements of Effective Advocacy in the Federal Circuit, Mark Davies has provided attorneys with an indispensable guide to briefing and arguing cases before the Federal Circuit.

Patent Appeals: The Elements of Effective Advocacy in the Federal Circuit is a practical guide to appellate advocacy for patent attorneys appearing before the federal appellate court responsible for patent law. The book guides readers through the organizational requirements needed for a Federal Circuit appellate brief, as set out in the Federal Rules of Appellate Procedure, with an emphasis on developing an appellate style for briefing a patent appeal. It is an essential manual of instruction for litigators and anyone interested in understanding the procedures of writing a winning appellate brief and presenting it in court. Topics include clear writing, the importance of presentation, the types of arguments most likely to succeed, and the formal requirements for filing a brief. Other issues include effective oral argument presentation and petitions for panel rehearing and rehearing en banc. Samples (all written by the author) are included.

Reviews

"This work, by one of the leading appellate lawyers, is an indispensable combination of intellectual-property issues and appellate strategy. In an easy-to-use format that tracks the Federal Rules of Appellate Procedure, Mark Davies distills his unique background in both high-stakes appellate practice and patent law to assist the patent litigator prepare a clear and effective Federal Circuit brief that best advances the client's cause. This highly readable work includes both the nuts and bolts of appellate practice, as well as numerous substantive suggestions about effective presentation and argumentation. This book is an invaluable work for every patent litigator." -Walter Dellinger, Chairman of the Appellate Practice at O'Melveny & Myers LLP, former Acting Solicitor General of the United States, and Duke University Douglas B. Maggs Professor Emeritus of Law

"Mark Davies has written a much-needed guide to the patent appeal process that will prove invaluable to any practitioner having a patent case before the Federal Circuit." -Thomas W. Krause, Associate Solicitor, United States Patent & Trademark Office and Adjunct Professor, Georgetown University Law Center.

"Mark Davies recently authored the user manual for Federal Circuit appeals. From its 300 spiral-bound pages, you can tell that the book is designed to serve the appellate attorney during the process of crafting a brief. Davies argued dozens of appeals as a DOJ appellate attorney and is now doing the same at O'Melveny in DC. The book is very easy to read and understand, and it does an especially good job of providing concrete advice on how to draft an effective and clearly written brief while staying within the rules. If you have an appeal pending, you better use the book." -Dennis Crouch, Patently-O blog at patentlyo.com

"A handy guide for patent appeals... The author is at his best when providing tips about what judges are looking for in each section of the brief. He gives the reader real confidence that if you follow his guide your brief and arguments will be well received and the court will presume you are experienced at the Federal Circuit The author has created a helpful, easy-to-use guide for patent appeals. This book is an excellent reference for the patent litigator." David P. Irmscher, Indiana Lawyer

Authors / Contributors

Table of Contents

INTRODUCTION 

CHAPTER 1. APPELLATE WRITING
CHAPTER 2. PREPARE A “SHELL” (RULE 28(A))

CHAPTER 3. THE INTRODUCTION (RULE 28(A))

CHAPTER 4. THE JURISDICTIONAL STATEMENT (RULE 28(A)(4))

CHAPTER 5. STATEMENT OF THE ISSUES (RULE 28(A)(5))

CHAPTER 6. STATEMENT OF THE CASE (RULE 28(A)(6))

CHAPTER 7. STATEMENT OF FACTS: STATUTORY BACKGROUND (RULE 28(A)(7))

CHAPTER 8. STATEMENT OF FACTS: FACTUAL BACKGROUND (RULE 28(A)(7))

CHAPTER 9. STATEMENT OF FACTS: PRIOR PROCEEDINGS (RULE 28(A)(7))

CHAPTER 10. SUMMARY OF ARGUMENT (RULE 28(A)(8))

CHAPTER 11. THE ARGUMENT (RULE 28(A)(9))

CHAPTER 12. OTHER BRIEFS

CHAPTER 13. FILING THE BRIEF AND THE JOINT APPENDIX

CHAPTER 14. ORAL ARGUMENT (RULE 34)

CHAPTER 15. PANEL REHEARING AND REHEARING EN BANC

Appendix A. Sample Opening Brief

Appendix B. Sample Reply Brief

Appendix C. Sample Amicus Brief

Appendix D. Sample 28(j) Letters

Appendix E. Sample Petition for Panel Rehearing and Rehearing En Banc

Appendix F. Sample Petition for Rehearing En Banc

Appendix G. Top 10 Reasons Formal Briefs Are Rejected

Appendix H. Requirements and Suggestions for Typography in Briefs and Other Papers

INDEX

ACKNOWLEDGMENTS