Transition: Chief Judge Michel –> Chief Judge Rader

Transition: May 31 is Chief Judge Paul Michel’s last day on the bench.  Judge Randall Rader will become the next Chief Judge of the Court of Appeals for the Federal Circuit. 

The Court today released two interesting patent opinions authored by the Chief: Dow Jones v. Ablaise (finding patent invalid as obvious) and Leviton v. Universal Security Instruments (vacating summary judgment of inequitable conduct). 

There are several pending en banc cases, including Princo v. ITC (patent pools and antitrust), Hyatt v. Kappos (Admissibility of new evidence in a Section 145 action), Therasense v. BD (standards of inequitable conduct), and TiVo v. EchoStar (contempt proceedings against adjuged infringer who introduced new infringing products). 

Combinatorics: With Chief Judge Michel gone, it may be more difficult for en banc panels to overturn prior precedent.  With Chief Judge Michel, the court has 11 members and needs a 6–judge majority to overturn prior precedent. Without the Chief, the court will have only 10 members but will still need 6–judges for such a “majority.” With the 11–judge panel, half of the potential outcomes result in majority panel sufficient to overturn prior precedent. With a 10–judge panel, only 38% of the potential outcomes have the same result. (This assumes a binary yes/no on the potential majority position).  Chief Judge Michel is particularly important because of his tendancy to side with the majority. In the past decade, Judge Michel has filed fewer dissinting opinions than any other Judge on the Circuit except for Judge Moore (who has only been on the bench for three years).  (Judge Newman has filed the most dissenting opinions.)

Next Vacancies: Several other Federal Circuit judges are currently eligible to take senior status. These include Judges Newman, Mayer, Lourie, Gajarsa, and Dyk. Judge Byrson will be eligible in August 2010.

Next Chief Judge After Judge Rader: Judge Kimberly Moore sits as the heir apparent following Judge Rader — assuming that he remains Chief Judge for a full seven years. If Judge Rader vacates the Chief position within six-years, Judge Prost would become Chief.

32 thoughts on “Transition: Chief Judge Michel –> Chief Judge Rader

  1. Pong rhymes with wrong… and then for Mooney to back her up. Wow Ned, what more do you need.

  2. pong No court found that the lawfirm Greenberg Traurig had committed inequitable conduct and the lower court’s finding of inequitable conduct was vacated on May 28, 2010

    The summary judgment was vacated but there is zero chance that the patent at issue will be found enforceable.

    Really bizarre decision by Michel. Seems like he was looking for any excuse to make a point about IC rulings and summary judgment, but he picked possibly the worst case imaginable to make the point. As Prost points out, if you can’t infer intent from these facts, then forget about ever inferring intent. Nothing short of an express admission of intent to deceive will do the trick.

    Patent Prospector has a decent write-up. And as noted by Ned, there’s also this other case pending:

    A federal judge Wednesday largely denied a motion to dismiss a $100 million malpractice case against Greenberg Traurig stemming from its patent work for an electronics manufacturing client.

    link to finance.yahoo.com

    Frankly, I don’t think the prosecution history of the ’776 patent is all that unusual. There are many, many applicants out there who will do and say anything to get a patent once they convince themsleves that there is a pile of gold at the end of the rainbow. What’s unusual is for someone to take a patent like that to court after the defendant has demonstrated that it’s a total piece of shxt. I suppose now a lot of plaintiffs are banking on a complete disembowling of IC by the en banc Therasense panel. Wouldn’t that be awesome? *gag*

    Not going to happen.

  3. I wouldn’t expect Judges Newman or Dyk to take senior status any time soon. My wild guess, based on nothing but a hunch, is that the next two vacancies will be when Judges Mayer and Lourie retire or take senior status.

  4. “Pong, by analogy, Obama was quite pissed off when BP and its partners kept blaming everyone else for what happened in the gulf. Obama was right.”

    then the prez also needs to talk to Nancy Pelosi. she recently said its George Bush’s fault. No joke. that fiasco has jumped the shark.

  5. pong, see also:

    “Leviton Manufacturing Co. Inc. v. Greenberg Traurig LLP et al
    Plaintiff: Leviton Manufacturing Co. Inc.
    Defendants: Greenberg Traurig LLP, Paul J. Sutton, Barry G. Magidoff and Claude R. Narcisse

    Case Number: 1:2009cv08083
    Filed: September 22, 2009

    Court: New York Southern District Court
    Office: Foley Square Office [ Court Info ]
    County: Nassau
    Presiding Judge: Judge George B. Daniels”

  6. Pong, but you got me thinking, just what are the responsibilities of the firm in a case like this where the firm represents a client both during prosecution and litigation? Can they responsibly shift the blame to one attorney?

  7. Another analogy, when Arthur Anderson certified Enron’s books, it was the firm’s responsibility, not the responsibility of any one individual.

  8. Pong, by analogy, Obama was quite pissed off when BP and its partners kept blaming everyone else for what happened in the gulf. Obama was right.

  9. Pong, I see.

    When a firm represents a client and something goes wrong, we identify a fall guy, anybody but a partner, and blame it all on him.

    That is fair?

  10. Something good did happen… Believe it or not…although it doesn’t have an f….n thing to do with the present. It will effect the future. Becsuse the causation stopped teaching bad Law

  11. Re: “Greenberg Traurig. Worst case of incompetence/inequitable conduct I have ever seen.”

    I don’t think its fair to judge the whole Greenberg Traurig by the actions of one to three individuals.

    In Leviton Mfg. v. USI, the magistrate judge found that Leviton (the plaintiff) had committed inequitable conduct. On review, the CAFC held on May 28, 2010: “Because we hold that genuine issues of material fact exist that preclude summary judgment for inequitable conduct, we vacate the determination of the district court and remand for a bench trial.”

    No court found that the lawfirm Greenberg Traurig had committed inequitable conduct and the lower court’s finding of inequitable conduct was vacated on May 28, 2010.

    The above May 29, 2010 postings do not seem consistent with the present state of facts.

    The case is at:
    link to cafc.uscourts.gov

    Another good read is at:
    link to en.wikipedia.org

  12. I would urge any prosecutor with respect for his profession to write a letter to the PTO requesting an investigation into the conduct of the prosecutor in the Leviton case.

    What a ridiculous decision by Michel. The district court decision was perfectly correct, with respect both to the IC charge and the vexatious litigation. If you don’t hammer scummy actors, it only reinforces their behavior.

  13. Ned,

    You’re killing me with your loose and sloppy style. You gonna make me read another case to understand what’s actually going down?

  14. Fisher, from the case:

    “During the district court case, Meihao sought discovery of the facts related to the inequitable conduct defense. Meihao argued that Leviton’s counsel unreasonably and self-servingly tried to avoid discovery of Leviton’s own misconduct. When Meihao issued subpoenas to Sutton, Magidoff, and Narcisse, the witnesses did not object, did not produce documents, and did not appear for their scheduled depositions. Leviton belatedly moved to quash primarily on the ground that the witnesses were acting as Leviton’s litigation counsel. In March 2007, Greenberg Traurig withdrew and was replaced by Nixon Vanderhye.”

  15. “They asked for the depositions of the Greenberg prosecution attorneys. They did not object, but never showed.”

    “asked for”?
    was a motion filed and granted by the judge compelling the attendance of the pros attnys at the deposition before the judge reached his/her SJ holding of IC?

  16. Greenberg Traurig.

    Worst case of incompetence/inequitable conduct I have ever seen.

    Brief facts, an invention was disclosed, but not claimed, in an application filed in 1999. That application resulted in a number of patents. There were at least 12 lawsuits filed on these patents. Greenberg was the litigation counsel.

    In 2004, Greenberg filed a new patent application with different inventors. Upon discovering the invention was also disclosed in the 1999 application, Greenberg filed a continuation from that series and presented therein the SAME claims as in the 2004 application. Again, the inventors were different. That is important. Greenberg filed a petition to make special. The patent issued. Let’s call it, the ‘766 patent. Greenberg never disclosed the 2004 application. Greenberg never disclosed the prior litigations involving the ’766 parents.

    Greenberg sued on the ‘766 patent. The defendants responded with a defense of IC. They asked for the depositions of the Greenberg prosecution attorneys. They did not object, but never showed. Greenberg withdrew from the litigation. The replacement firm withdrew the case. However the lower court still awarded attorneys fees based on IC and vexatious litigation.

    On appeal, in a split decision, the Feds overturned the IC ruling, and the award of attorneys fees, solely because the Fed. Circuit had never held IC on summary judgment simply by failing to disclose material information. A strong dissent would have affirmed because Greenberg had no reasonable excuse for non disclosure of the 2004 related patent application and litigations of its parents.

    The information not disclosed was HIGHLY material. The fact that the claims were copied from an application with different inventors raised inventorship issues. The fact that the same invention was disclosed and was claimed in two related applications was also material due to the potential of double patenting. Finally, disclosure of litigation of parent patents is expressly required by the MPEP.

  17. “All the more senior judges will be over 65 by the end of Rader’s term. That means after Rader, Moore’s our only hope. And after her, Judge Kenobi.”

    Figured that was what it must have been. Just didn’t realize that they were all that old.

  18. How did that happen?

    All the more senior judges will be over 65 by the end of Rader’s term. That means after Rader, Moore’s our only hope. And after her, Judge Kenobi.

  19. “Judge Kimberly Moore sits as the heir apparent following Judge Rader”

    How did that happen? She just got appointed like yesterday.

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