Taking an IP Case Up on Appeal: A Practitioner's Guide to Preservation, Standards of Review, Briefing, and the Federal Circuit
By Casey Scott McKay ·
This guide takes an intellectual property case from adverse judgment through mandate, in the order the work actually has to be done. It covers deciding whether to appeal at all, calculating a jurisdictional deadline that tolling motions can move, choosing between the Federal Circuit and a regional circuit where the choice exists, auditing the record for preserved issues, mapping each candidate issue to the standard of review that will govern it, and building a brief that gives the panel the shortest path to the relief sought. It then addresses the mechanics practitioners get wrong: cross-appeals filed unnecessarily, appendices assembled carelessly, stays not sought in time, and prejudice asserted rather than argued. It closes with what happens after the opinion, because a reversal usually buys a remand rather than a judgment and the client needs to be told so before the notice is filed.
IP and Technology > Patent Litigation | Guide | Published 25 April 2024 - Updated 5 July 2025 | Casey Scott McKay - marksy.us
Summary. This guide takes an intellectual property case from adverse judgment through mandate, in the order the work actually has to be done: deciding whether to appeal, calculating a jurisdictional deadline that tolling motions can move, choosing the court where a choice exists, auditing the record for preserved issues, mapping each candidate issue to the standard of review that will govern it, and building a brief that gives the panel the shortest path to the relief sought. It addresses the mechanics practitioners get wrong — unnecessary cross-appeals, careless appendices, stays not sought in time, prejudice asserted rather than argued — and closes with what happens after the opinion, because a reversal usually buys a remand rather than a judgment.
Keywords: appellate practice · notice of appeal · issue preservation · standard of review · Federal Circuit · joint appendix · appellate briefing · oral argument · Rule 50 motion · harmless error · cross-appeal · stay pending appeal · supersedeas bond · rehearing en banc · certiorari · mandate and remand
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