When filing a brief with the Federal Circuit the parties are allowed to denote material appearing in their briefs as confidential. Similarly, material presented in the Joint Appendix can be marked confidential. At oral argument, the judges of the Federal Circuit will often ask the parties if these confidential markings are still applicable for two reasons: (1) so that the judges are free to ask questions about the material in open court and have it recorded; and (2) so that the judges know what can be published in any written opinion.
In one case from several years ago, counsel for an intervenor in the case was present at oral argument but was not taking part in the oral argument itself. He was called up to address the confidentiality issue and Judge Bryson remarked that this was like the attorney nightmare where one is called out of the audience to argue a case: [Listen].