Federal Circuit Advisory Council

Chief Judge Randall Rader has announced some changes to the Advisory Council for the Court of Appeals for the Federal Circuit. Ed Reines is taking-over as Chair. [Link] New members of the Council include Tina Chappell (Intel), Chip Lutton (Apple), Dean Whealan (GWU), and Professor Katherine White (Wayne State). Chappell, Lutton, Whealan, and White all clerked for Judge Rader.

Other members of the Council include:

  • Meredith Martin Addy (Brinks Hofer);
  • Jeanne Davidson (DOJ);
  • Professor Lisa Dolak (Syracuse);
  • Robert Huffman (Akin Gump);
  • Michael Jakes (Finnegan);
  • Joe Re (Knobbe);
  • Michael Schaengold (Patton Boggs);
  • Ronald Smith (Finnegan); and
  • Richard Stanley (Howrey).

One role of the Advisor Council is to ensure that the Court is aware of concerns from the bar and litigants. Direct contact information for the council members is available online. [Link]

Council members generally serve three-year terms.

Update: To be clear, I don't see any problem with Judge Rader appointing his former clerks. These are people that the Judge trusts because he has worked closely with them. Trust is important — especially when dealing with potentially sensitive inner-workings of the court system. At the same time, I know from experience that each of these new Council Members are incredibly strong, intelligent, and independent thinkers.

21 thoughts on “Federal Circuit Advisory Council

  1. looking glass, Dennis didn’t make that up, but I think you are misunderstanding which “concerns” the Council brings to the court. If a Council member expressed a substantive law concern, I think CJ Radar would interrupt him/her and make it clear that this is not the sort of advice the court seeks from the Council.

    OTOH, if a Council member were to have suggestions for Fed. Cir. Rules or internal operating procedures changes, that would be entirely appropriate. For example, getting e-filing of briefs going — that’d be very appropriate to suggest.

  2. 2512 is more specific, relating to employment, but it’s quite long. Here is the beginning of it:

    § 1-2512. Unlawful discriminatory practices in employment.

    (a) General. It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, disability, matriculation, or political affiliation of any individual:

    (1) By an employer. To fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee;

    … and it goes on. You will note that footnote (22) provides an out “for a reasonable business purpose”, but in general it suggests, for example, that any DC firm that discriminated against an employee based on their “hair style” could look forward to being on the receiving end of a nice lawsuit.

    OTOH, I don’t think that Congress has to abide by DC employment law.

  3. Dear Comic Book Guy, my hair is much longer than Whealan’s, and I didn’t go to Harvard. Maybe you only think you need to get a haircut? In the words of Bob Marley “only our selves can free our minds”.

    Or maybe you just need to get a job in Washington DC, like me.

    DC Human Rights Law
    D.C. CODE
    TITLE 1
    CHAPTER 25 — HUMAN RIGHTS

    § 1-2501. Intent of Council.

    It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, disability, source of income, and place of residence or business.

    (22) “Personal appearance” means the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards. It shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed standards, when uniformly applied for admittance to a public accommodation, or when uniformly applied to a class of employees for a reasonable business purpose; or when such bodily conditions or characteristics, style or manner of dress or personal grooming presents a danger to the health, welfare or safety of any individual.

  4. Andrew,

    Are there other sections as well as the Rules Publication section that apply?

    Pointing to one area may not mean other areas do not exist and that the opinions being expressed here are incorrect. Or is it your contention that Dennis made up the bit about “One role of the Advisor Council is to ensure that the Court is aware of concerns from the bar and litigants.“?

  5. Why does the Fed Cir need an “advisory counsel”?? How many of the other federal circuit courts of appeal have these “advisory counsels”??

    Other circuit courts have similar advisory groups. Here’s a posting about the First Circuit Rules Advisory Committee:

    link to ca1.uscourts.gov

  6. 28 U.S.C. § 2077.

    Publication of rules; advisory committees

    * * *

    (b) Each court, except the Supreme Court, that is authorized to prescribe rules of the conduct of such court’s business under section 2071 of this title shall appoint an advisory committee for the study of the rules of practice and internal operating procedures of such court and, in the case of an advisory committee appointed by a court of appeals, of the rules of the judicial council of the circuit. The advisory committee shall make recommendations to the court concerning such rules and procedures. Members of the committee shall serve without compensation, but the Director may pay travel and transportation expenses in accordance with section 5703 of title 5.

  7. Why does the Fed Cir need an “advisory counsel”?? How many of the other federal circuit courts of appeal have these “advisory counsels”??

  8. “Just authority”? What sort of advice to you think the judges seek from this council? Do you really think they’d seek input on, say, whether the clear & convincing standard of proof should apply re invalidity/enforceability? I don’t.

  9. Firms with 500 or fewer employees account for over 90% of new jobs created, yet judge Rader doesn’t see fit to give them representation on his Council. That Council therefore has no just authority.

  10. Is Whealan still sporting that pony tail? I guess if you go to Harvard, you don’t have to worry about trivial things like that. The rest of us have to get haircuts.

  11. It’s more about the operations and procedures of the court.

    Contra.

    One role of the Advisor Council is to ensure that the Court is aware of concerns from the bar and litigants

    W

    T

    F

  12. Well, just what the Fed. Cir. needed: a council of Rader sycophants so that the Fed. Cir. can truly understand the “real” problems affecting American innovation.

    Well, for one thing, Rader, stop deciding cases en banc without briefing.

    Stop deciding cases based on issues raised sui generis without allowing the parties to argue and brief them.

    And, when deciding cases such as Giacomini, don’t introduce who new doctrines regarding prior art without the assistance of the bar through amicus briefs. Your dicta there regarding “claimed subject matter” is very unfortunate.

  13. That’s Drudgesque reporting? So Judge Rader like to go to his former clerks for advice — interesting to know, but it sounds like a reasonable approach to me.

    As for the diversity of opinion re substantive law, W. Boone, I don’t think that’s really a concern here. The judges aren’t looking for such advice from the Council. It’s more about the operations and procedures of the court.

  14. “Chappell, Lutton, Whealan, and White all clerked for Judge Rader.”

    Awesome spotlight reporting, Matt Drudg, er, DC. Just throwing a fact out there for completeness, aren’t you, reporter? Who could have foreseen your commenters making the unsavory points that the appointments are biased or show favoritism from that piece of information? Who indeed.

  15. The Advisory Council seems very representative of large Fortune 100 companies that have spearheaded patent reform, but lacking in representation from smaller companies that develop and enforce IP, such as Rambus or Tessera, or respected plaintiff’s firms that often represent smaller patent owners, such as Susman Godfrey or Robins Kaplan.

    Appointing four of his own clerks, also seems to show Judge Radar prefers to stack the group with people who agree with him rather than seek out a diversity of opinion.

    Just recall, this country experienced its most dynamic growth during the period when patents were strongest. As patents have dropped in value or been limited in the last three years, so too has our economy dropped. Moreover, as manufacturing moves off-shore, protecting US R&D is our only plan for prosperity. Stacking the council with pro-patent reform representatives (read, dilute patent power) who all were trained by Judge Radar, is not going to improve our competitive position in world markets.

    Maybe the next appointments need to be from Goldman Sachs or Harvard Business School?

  16. Hmmm…I was never asked to join — they must have lost my contact information.

    Seriously, Council, I hope you’ll get to work on two pressing items:

    1) No e-filing of briefs. This is embarrassing. Every one of the other 12 circuits has e-filing. The CAFC is supposed to be comfortable with technology, right?

    2) The rejection rate of submitted briefs. I was told by someone in the clerk’s office that it is over 50%. This is a costly waste of paper, time and money. The court should work on ways to educate lawyers and their staffs about the filing requirements. Also, must there be so many rejections of non-compliant briefs? Might there be a lesser penalty or merely a warning in more cases?

  17. “Chappell, Lutton, Whealan, and White all clerked for Judge Rader.”

    . . .uh, hello? Anybody home on this? 60,000 patent lawyers/agents in this country and he appoints only his own clerks???

    How about the other 9 members — whom did they clerk for?

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