The recent CAFC grant of the In re Seagate petition to review the privilege/waiver issues made the apparent offer to accept amicus briefs without motion. That offer was vague, or ambiguous (as is the favored phrase in interrogatory answers).
Now, the murk about the comment has been drawn clear by the CAFC’s “Notice of Rejection” of the appearance of AIPLA as amicus curiae. By minute entry on Feb. 27th, the CAFC stated that the AIPLA “Entries of appearance …cannot be filed” because a “motion for leave to file or consent of the parties is required.”
Presumably, the CAFC’s prior opinion on the mandamus petition did not work a waiver as to the subject matter of who freely is accepted as amicus of the Court.