Federal Circuit Judicial Nomination Watch

By Dennis Crouch

Failure to Confirm: We all still remember Paul Michel as Chief Judge of the Federal Circuit, but it wasn't yesterday that he stepped down. Rather, we are nearing the three anniversary of his 2010 retirement (as a Federal Judge). In 2010, President Obama nominated Edward DuMont to replace Judge Michel. However, DuMont's nomination floundered. In 2011, President Obama nominated Richard Taranto for the post. However, the Senate has now failed to confirm Taranto's nomination. I expect that President Obama will re-nominate Taranto this month – giving the Senate another two years to consider filling the slot. No Senator has voiced any opposition to Taranto's nomination.

Two additional Openings: President Obama has not yet nominated a replacement for Judge Richard Linn who took Senior Status on November 1, 2012 after thirteen years in office. In addition, Judge William Bryson is scheduled to take Senior Status on January 7, 2013.

Future Openings?: Judges Newman, Lourie, and Dyk are all eligible for senior status.

Over the past two years, Judges Newman, Bryson, Linn, & Dyk have shown the highest propensity for participating in a panel opinion that includes a dissent. Judge Newman continues to be the most frequent dissenting author, followed by Judges Dyk and O'Malley. These results are shown in the chart below that includes results from all Federal Circuit opinions coded in Westlaw (CTAF) for 2011-2012.

52 thoughts on “Federal Circuit Judicial Nomination Watch

  1. The court has to decide a case or controversy that is before them

    As Leopold would say,

    Bazinga!

    Do you know how the court knows what that is? (Hint; it is the question posed to them). Sure, they may choose to not answer the question, but that is neither here nor there (I am sure that you are aware that the highest Court does a lot of things that it shouldn’t do – or don’t you remember Lochner – amongst many such?).

  2. You are aware that the question of law asked of the court to decide drives the holding, right?

    No, I am not aware of that at all.

    The court has to decide a case or controversy that is before them. Anything else they say is dicta. Even if you ask them a direct question about it. They’re free to say “we don’t need to answer that question”, and if they answer such a question, their answer is dicta.

  3. You are aware that all nine justices can agree on a point of dicta, right?

    Sure. But that’s not what happened – you are aware of that right? You are aware that the question of law asked of the court to decide drives the holding, right? You do understand how to reach something that is “clearly dicta,” right? (rhetorical question as it is obvious that you do not).

    Nice Calvinball spike to the face (again) IANAE. (Sigh) Still no smart in IANAE’s smart@_$$ comments.

    btw – you also got the Prometheus point wrong too. I will leave it to you to figure out why.

  4. how many thousands of posts have we suffered through

    LOL. Nobody forces you to read this blog, anon (as far as we know).

  5. You are aware that a case can have more than one holding, right?

    Yes.

    You are aware that all nine justices can agree on a point of dicta, right?

    And you’re aware, despite your best efforts, that whether or not the MOT is “the” test had no bearing on the outcome of Bilski, because the MOT would have decided Bilski the same way, so the point is clearly dicta. Prometheus is what made it the law that MOT is not the definitive test.

  6. Is the MOT a definitive test? What difference does it make, when you hold that the claim before you fails the MOT and is ineligible?

    Welcome to the “whatever.”

    IANAE, you are quote wrong in dismissing this. As it turns out, the MOT as THE test is actually a holding in the Supreme Court Bilski case, being agreed to by all nine Justices and setting the law in that area.

    You are aware that a case can have more than one holding, right?

  7. where an entire invention needs to be clearly stated in one sentence.

    LOL – well at least not “insolubly ambiguous.”

  8. (Or maybe IANAE people who can’t read well have no business in patent law.)

    IANAE: a judicial exception should never be just one sentence. A judicial exception is by its very nature legislation. It is a judge overruling the codified law. A judicial exception should always be applied as narrowly as possible and should never be applied when the law can be used instead. A judicial exception should always be carefully considered and the reasons for using the judicial exception carefully explained. The judicial exception is like clemency being granted by the President.

    A judges are not legislators. The legislation has had 40 plus years to legislate that software is not eligible for patentability. They have not done so despite numerous bills revising the patent act.

    Rader’s comment, by the way, was dicta!

  9. a judicial exception should just be one sentence?

    Do you mean to ask whether a decision about whether a claim is ineligible under a judicial exception should be just one sentence? Your once sentence wasn’t very clear on that. I guess some people aren’t very good at saying what they need to say in a single sentence, but those people probably have no business in patent law, where an entire invention needs to be clearly stated in one sentence.

    I think the Bilski decision should have been a single sentence long. So does Rader. The Supreme Court in Bilski took longer only because it was trying to answer irrelevant questions posed by the appellants, and because they were arguing with each other in writing. Is the MOT a definitive test? What difference does it make, when you hold that the claim before you fails the MOT and is ineligible? That’s pure dicta, and I said so even before Bilski was decided.

    Ultimately, the Supremes held the Bilski claims ineligible “because they’re abstract”. They didn’t need to say more.

    But mostly, decisions in the character of “stop wasting our time with this nonsense” should always be as short as possible, no matter what they’re about.

  10. 101,

    Quite correct, and much to the chagrin of the activist Stevens (and the usual agenda-seeking-law-obfuscating-third-party-propagandists on this blog – how many thousands of posts have we suffered through with the anti-Business Method crrp?)

  11. “Nothing more was needed.”

    More was needed and that is why the Court took Bilski.

    It needed to be said that Bilski was abstract because claim 4 could be reduced to a disembodied bare math equation.

    “Claim 4 puts the concept articulated in claim 1 into a simple mathematical formula.”) BILSKI v. KAPPOS, 2, 2010,

    Being a so called “business method” had nothing to do with it.

  12. I am going to make my own list. Let’s see, we have Rader, Newman, and Linn right? Who else can be counted on to follow the law and not try and set policy from the bench? Please anyone out there feel free to contribute. Thank you in advance.

  13. Wrong again, of course, but bold.

    “It should have merely noted that Bilski attempts to patent an abstract idea. Nothing more was needed.”

    Nothing more was needed.

  14. So, your claim is that it took only one line in Bilski to “dispose” of the case? And, that all the other lines in the case were not part of the reasoning that lead to the one line conclusion?

    Bold statement. Wrong again, of course, but bold.

  15. Dicta is not quite so broad as that

    If one line is all it takes to dispose of the case, everything else is dicta. That’s what “dicta” means.

  16. B-b-b-b-but we should always talk about policy and ignore which part of the government has been constitutionally sanctioned to write patent law.
    /off sarcasm

  17. Rader has come around since that one.

    That’s a shame, because the Supremes agreed with that statement of his in Bilski. Everything else they said was dicta.

  18. Rader came around in Ultrmercial to Newman’s position in her dissent in Bilski. I admit that I was very disappointed in Rader’s abstract comment in his Bilski dissent.

    He seemed to forget his patent law.

  19. Rader has come around since that one. In Ultramercial he saw the light of truth in Newman’s dissent in Bilski.

  20. “In sum, this court today invents several circuitous and unnecessary tests. It should have merely noted that Bilski attempts to patent an abstract idea. Nothing more was needed.”

    That one.

  21. You mean the one where Rader referenced actual components of a computer and the actual work the information processing invention was performing? The one where he avoided abstract terms? That one?

  22. The biggest way to identify one of these lowly scum is that the don’t cite actual inventions or embodiments, but recite in a chanting fashion words like “abstract,” “idea,” “law of nature.”

    Anybody else remember Rader’s opinion in Bilski?

  23. “Actually, I should go through and figure out what is going to happen.”

    Please do if you find time and post it! It would be greatly beneficial and a real service to everyone trying to maintain the integrity of the patent system and see that the actual laws are adhered to and impartially applied.

  24. I think Newmans dissent in In re Ferguson was a classic. She was absolutely right about MoT, and about the misuse of 101 to create policy rather using 102 and 103 to do their perspective jobs.

    Speaking of Ferguson and policy I found this gem of a footnote. I wonder any of the anti-software and business method judges ever consider this when going on their software witch hunts.

    “The essence of the concurrence is an argument premised on policy and philosophical grounds. We disagree with this approach, as it is not the role of courts to make such arguments but rather the responsibility of Congress to consider amending the patent laws as necessary to recognize and allow for innovation in the future.” (In re Ferguson Foot Note 7)

  25. How about this policy:?

    Have the judiciary understand the facts and follow the law and take their fingers out of the pie of making the law.

  26. It is a good question 101. I am not sure what the count is. But, there are definitely patent judges like Newman and Rader and policy judges like Moore. I am not sure what the count is, but almost all of the judges are predictable. Newman–apply the law and understands patent law. Moore–policy oriented hack who does not follow the law; deserves to be impeached.

    Unfortunately, the policy hacks are numerous. They are driven like Lemley by policy and not law. The biggest way to identify one of these lowly scum is that the don’t cite actual inventions or embodiments, but recite in a chanting fashion words like “abstract,” “idea,” “law of nature.” They also dismiss limitations of a claim by a wave of the hand and tend to reduce information processing to a data processing that you go and get the office boy to do.

    Actually, I should go through and figure out what is going to happen. I am just so busy right now. But, they are predictable.

  27. Well, I do not keep up with who is who on the CAFC but I do hope we get more pro patent judges that hold the views of the majority in Diehr and believe the category of “process” is a broad, expansive and independent category from the other three.

    Can someone please sum up where we stand now on the CAFC in terms of judges that support the Rader-Diehr view that is the basis of cases like Research Corp and those that support the dissent in cases like Alice?

    This seems to be very important as the battle rages forward in the Alice enbanc case and Court GVR in Ultramercial.

  28. BTW, I don’t have anything against Taranto yet, but the Harvard mark has to make one suspicious that he’s just yet another anti- private property rights activist more concerned with policy than with the actual law and facts.

  29. Regarding Taranto, the Senate did hold a hearing and there has been no objection to his candidacy. While he is not a patent attorney, he is very familiar with IP law. He taught patent law at Harvard and has argued dozens of Federal Circuit patent appeals, including several Rambus cases, Verizon v. Cox, Lucent v. Gateway, Syngenta v. Monsanto, and others. Mr. Taranto has argued three IP cases before the U.S. Supreme Court: MGM v. Grokster (contributory copyright infringement), Warner Jenkinson v. Hilton Davis (patent law doctrine of equivalents), and Two Pesos v. Taco Cabana (trade dress infringement). He clerked for Judge Abraham Sofaer on the Southern District of New York; Judge Robert Bork on the D.C. Circuit; and Justice Sandra Day O’Connor on the Supreme Court.

  30. Define worthy.

    But I think the O-man Has been nominating very well-qualified candidates. I don’t understand why The Senate cannot even have hearings on these guys.

  31. It would probably help if Obama would nominate a worthy candidate.

    FYI, “advice and consent” does not mean “rubber stamp”.

  32. Wow. I had not realized just how incapable of doing its job Congress had become until I saw it could not even confirm a Fed. Cir. judge in three years.

  33. I would add that if anyone wants to understand patent law as opposed to understanding the policy arguments put forth by the lowly likes of J. Moore or Lemley, then read J. Newman’s opinions. Her dissent in Bilski is excellent and puts to shame the policy %$#%$% of a Lemley’ite laden Fed. Cir.

    We are very lucky to have Rader and Newman. I just hope that Rader stands tall. I know that Newman will to the end.

  34. It would be interesting to see whether or not J. Newman’s dissent percentage has risen since the forming of the Fed. Cir.

    Or maybe to see whether or not J.Newman’s dissent percentage correlates with the number of judges in the panel that actually were patent attorneys.

    J. Newman represents one of the last strongholds of patent law in this country. She is a great judge that only J. Rich has surpassed.

    I am sure if there is a way to measure the quality of an opinion that J. Newman would rank #1 of all the Fed. Cir. judges. Lemley and Moore aren’t worthy to clean J. Newman’s toilet.

  35. Not really.

    Dissent does not necessarily correlate with activism and to post such indicates a lack of understanding of the law and the dynamics of panel decisions.

    You do the moniker name injustice.

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