The Federal Circuit recently issued some decisions on merit cases as “orders.”  For example, see Optimum Power Solutions, LLC v. Hewlett-Packard, Inc., App. No. 2013-1277 (Fed. Cir. Dec. 12, 2013).  If I recall correctly, the court issued similar orders for a time back in 2009.  Look for the court to amend its internal operating procedures.  Those operating procedures currently state that merit cases shall be disposed of by precedential or non-precedential opinions, if not disposed of by Rule 36 judgments.

DATE: November 14, 2008



1. The court employs only the following means in disposing of matters before it for decision: precedential opinions; nonprecedential opinions; precedential orders; nonprecedential orders; and Rule 36 judgments of affirmance without opinion.

2. The court’s decisions on the merits of all cases submitted after oral argument or on the briefs, other than those disposed of under Rule 36, shall be explained in an accompanying precedential or nonprecedential opinion.

3. The court’s decisions on motions, petitions, and applications will be by precedential or nonprecedential orders.

4. The court’s policy is that all opinions and orders shall be as short and as limited to the dispositive issue as the nature of the cases or motions will allow.

5. At the election of the authoring judge, a unanimous or majority opinion, precedential or nonprecedential, may be headed “PER CURIAM.” Rule 36 judgments shall be “PER CURIAM.”

6. Copies of all issued opinions and precedential orders shall be provided when issued to all judges of the court, to other participating judges, to the parties involved, and to the tribunal from which the appeal was taken, or which is affected by the order. Copies of Rule 36 judgments signed by the clerk will be provided by the clerk to the parties, the trial tribunal, and the members of the panel.

(Emphasis added)

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