Fed. Cir. R. 40

(a) General.

(1) Rehearing of Panel Decision.

A party may seek rehearing of a decision through a petition for

panel rehearing, a petition for rehearing en banc, or both. Unless

a local rule provides otherwise, a party seeking both forms of

rehearing must file the petitions as a single document. Panel

rehearing is the ordinary means of reconsidering a panel

decision; rehearing en banc is not favored.

(2) Combined Petition for Panel Rehearing and Rehearing

En Banc.

If a party chooses to file both a petition for panel rehearing and

a petition for a rehearing en banc, then the two must be

combined. The cover of a combined petition must indicate that

it is a combined petition.

(3) Initial Hearing En Banc.

A party may ask that the court hear a case en banc as an initial

matter, without a panel hearing the case first. Such initial

hearing is almost never justified and will almost never be

granted.

(4) Arguing to Overrule a Precedent.

Although only the court en banc may overrule a binding

precedent, a party may argue, in its brief and at oral argument,

to overrule a binding precedent without petitioning for a hearing

en banc. The panel will decide whether to ask the judges in

regular active service to consider hearing the case en banc.

(5) Frivolous Petition.

A petition for panel rehearing, hearing en banc, or rehearing en

banc that does not meet the standards of this rule may be

deemed frivolous and sanctions may be imposed.

(b) Required Contents.

(1) Contents of Petition for Panel Rehearing.

The required contents for a petition for panel rehearing are as

follows:

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(A) a white cover or first page as prescribed in Federal Rule

of Appellate Procedure 32(c)(2)(A);

(B) the certificate of interest under Federal Circuit Rule 47.4,

which must appear immediately after the front page;

(C) the table of contents;

(D) the table of authorities;

(E) the points of law or fact overlooked or misapprehended by

the court;

(F) the argument;

(G) an addendum containing a copy of the court’s dispositive

order, opinion, or judgment of affirmance without opinion;

and

(H) a certificate of compliance that adheres to Federal Rule of

Appellate Procedure 32(g).

(2) Contents of Petition for Hearing En Banc, Petition for

Rehearing En Banc, and Combined Petition.

The required contents for a petition for hearing en banc, a petition

for rehearing en banc, and a combined petition are as follows:

(A) a white cover or first sheet as prescribed in Federal Rule

of Appellate Procedure 32(c)(2)(A);

(B) the certificate of interest under Federal Circuit Rule 47.4,

which must appear immediately after the front page;

(C) the table of contents;

(D) the table of authorities;

(E) the statement of counsel required under Federal Circuit

Rule 40(c);

(F) if filing a combined petition, the points of law or fact the

filer believes the court has overlooked or misapprehended

as required under Federal Rule of Appellate Procedure

40(b)(1)(A);

(G) the argument;

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(H) if filing a petition for rehearing en banc or combined

petition, a copy of this court’s dispositive order, opinion,

or judgment of affirmance without opinion attached as an

addendum; and

(I) a certificate of compliance that adheres to Federal Rule of

Appellate Procedure 32(g).

(c) Statement of Counsel, Required for En Banc Requests.

(1) Petition for Rehearing En Banc or Combined Petition.

A petition that an appeal be reheard en banc must contain one or both

of the following statements of, and be separately signed by, counsel at

the beginning of the petition:

Based on my professional judgment, I believe the panel

decision is contrary to the following decision(s) of the

Supreme Court of the United States or the precedent(s) of

this court: (cite specific decisions).

Based on my professional judgment, I believe this appeal

requires an answer to one or more precedent-setting

questions of exceptional importance: (set forth each

question in a separate sentence).

(2) Petition for Hearing En Banc.

A petition that an appeal be initially heard en banc must

contain the following statement of, and be separately signed by,

counsel at the beginning of the petition:

Based on my professional judgment, I believe this appeal

requires an answer to one or more precedent-setting

questions of exceptional importance: (set forth each

question in a separate sentence).

(d) Addendum Contents.

The required contents for an addendum to a petition for panel

rehearing, a petition for rehearing en banc, or a combined petition are

as follows:

(1) Court’s Decision.

A copy of the dispositive order, opinion, or judgment of

affirmance without opinion sought to be reheard must be bound

with a petition for rehearing as an addendum, as appropriate.

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(2) Reproduction of Statutes, Rules, Regulations, etc.

If the court’s determination of the issues presented requires the

study of statutes, rules, regulations, etc., the relevant parts

must be set out in the petition or response, or in any addendum

attached to the petition or response.

(3) Other Material.

Material not listed in subsections (1)– (2) above or permitted

under Federal Rule of Appellate Procedure 32.1(b) may not be

included as an addendum without leave of the court.

(e) Response.

If the court requests a response, which must not exceed 3,900 words if

prepared electronically or fifteen (15) pages otherwise, the required

contents are as follows:

(1) a white cover or first sheet with the information prescribed in

Federal Rule of Appellate Procedure 32(c)(2)(A);

(2) the certificate of interest under Federal Circuit Rule 47.4, which

must appear immediately after the front page;

(3) the table of contents;

(4) the table of authorities;

(5) the argument;

(6) any addendum under Federal Circuit Rule 40(d); and

(7) a certificate of compliance that adheres to Federal Circuit Rule

32(g)(1).

(f) Time.

(1) Except for a civil case in which the United States or its officer or agency

is a party, a petition for panel rehearing, a petition for rehearing en

banc, or a combined petition for rehearing en banc and panel rehearing

must be filed within thirty (30) days after entry of judgment on the

panel decision sought to be reheard. If the United States or its officer

or agency is a party, the petition must be filed within forty-five (45)

days after entry of judgment.

(2) A party’s petition that an appeal be heard initially en banc must be

filed no later than the date when its principal brief is due in accordance

with the Federal Rule of Appellate Procedure 40(g). Unless the court

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orders otherwise, the filing of such a petition does not alter the

schedule for briefing to the panel.

(g) Paper Copies.

Paper copies of petition s for panel rehearing, petitions for hearing or

rehearing en banc, combined petitions, or responses to any such

petition must be provided to the court in accordance with Federal

Circuit Rule 25(c)(3).

(h) Informal Petition for Panel Rehearing or En Banc Petition;

Response.

(1) Informal Petition.

An unrepresented party may file an informal petition for panel

rehearing, informal petition for hearing en banc, informal

petition for rehearing en banc, or informal combined petition for

panel rehearing and rehearing en banc in letter form not to

exceed fifteen (15) typewritten double- spaced pages, attaching

to each a copy of the dispositive order, opinion, or judgment

sought to be reheard, and three (3) copies must be filed in

accordance with Federal Circuit Rule 25(c)(3).

(2) Informal Response.

If the court requests a response to an informal petition for panel

rehearing, informal petition for hearing en banc, informal

petition for rehearing en banc, or informal combined petition for

panel rehearing and rehearing en banc, or if the court requests

an unrepresented party to respond to a formal petition for panel

rehearing, the response may be informal. The informal response

may not exceed fifteen (15) typewritten double- spaced pages,

and three (3) copies must be filed in accordance with Federal

Circuit Rule 25(c)(3).

(i) Amicus Curiae Brief.

In addition to the content requirements under Federal Rule of Appellate

Procedure 29(b)(4), the following apply to amicus curiae briefs filed during

the court’s consideration of whether to grant a petition for panel rehearing,

petition for hearing en banc, petition for rehearing en banc, or combined

petition for panel rehearing and rehearing en banc, except as otherwise

permitted or directed by the court.

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(1) Leave.

The brief must be accompanied by a motion for leave to file.

(2) Timeliness.

Any brief and motion for leave must be filed within fourteen (14) days

after the date of the filing of the petition or response that the amicus

curiae supports. If the amicus curiae does not support either party,

then the brief and motion for leave to file the brief must be filed within

fourteen (14) days after the date of the filing of the petition.

(3) Type-Volume Limitation.

The brief must not exceed 2,600 words if prepared electronically, or ten

(10) pages otherwise.

(4) Paper Copies.

Paper copies of the brief must be provided to the court in

accordance with Federal Circuit Rule 25(c)(3).