President Obama Nominates Two to Serve on the US Court of Appeals for the Federal Circuit

   

The following is the press release:

 

WASHINGTON, DC – Today, President Obama nominated Raymond T. Chen and Todd M. Hughes to the United States Court of Appeals for the Federal Circuit.

   

 Raymond T. Chen and Todd M. Hughes have displayed exceptional dedication to public service throughout their careers,” President Obama said. “I am honored to nominate them today to serve the American people on the United States Court of Appeals. I am confident that they will be judicious and esteemed additions to the Federal Circuit.”

   

Raymond T. Chen:  Nominee for the United States Court of Appeals for the Federal Circuit

Raymond T. Chen currently serves as the Deputy General Counsel for Intellectual Property Law and Solicitor for the United States Patent and Trademark Office (USPTO), a position he has held since 2008. 

   

Chen received his B.S. in electrical engineering in 1990 from the University of California, Los Angeles, and his J.D. in 1994 from the New York University School of Law.  After graduating from law school, he joined Knobbe, Martens, Olson & Bear, a boutique intellectual property law firm in Irvine, California, where he prosecuted patents and represented clients in intellectual property litigation.  From 1996 to 1998, Chen served as a Technical Assistant at the United States Court of Appeals for the Federal Circuit, performing the functions of a staff attorney.  At the end of his two-year term, he joined the USPTO as Associate Solicitor and remained in that role until his promotion to Solicitor in 2008.   Since joining the USPTO, Chen has represented the agency in numerous appeals before the Federal Circuit and personally argued over 20 cases, issued guidance to patent examiners to ensure consistency with developing law, advised the agency on legal and policy issues, and helped promulgate regulations.  He has co-chaired the Patent and Trademark Office Committee of the Federal Circuit Bar Association and is a member of the Advisory Council for the United States Court of Appeals for the Federal Circuit. 

   

Todd M. Hughes:  Nominee for the United States Court of Appeals for the Federal Circuit

Todd M. Hughes is Deputy Director of the Commercial Litigation Branch of the Civil Division at the United States Department of Justice, a position he has held since 2007.  He also has served as an adjunct lecturer in law with the Cleveland-Marshall College of Law and as an instructor for Duke University’s writing program. 

   

Hughes received his A.B. from Harvard College in 1989 and completed a joint degree program with Duke University, earning both his J.D. with honors and his M.A. in English in 1992.  After graduating from law school, Hughes clerked for the Honorable Robert B. Krupansky of the United States Court of Appeals for the Sixth Circuit.  In 1994, he joined the Commercial Litigation Branch as a trial attorney.  Five years later, he was appointed to be Assistant Director for Commercial Litigation, a role he held until assuming the title of Deputy Director in 2007.  Throughout his career with the Department of Justice, Hughes’s practice has been devoted to matters of federal personnel law, veterans’ benefits, international trade, government contracts, and jurisdictional issues regarding the United States Court of Federal Claims.  He has extensive experience before the United States Court of Appeals for the Federal Circuit, the United States Court of International Trade, and the United States Court of Federal Claims, and he has garnered a number of special commendations from the Department of Justice and a special contribution award from the Department of Veterans Affairs.

91 thoughts on “President Obama Nominates Two to Serve on the US Court of Appeals for the Federal Circuit

  1. AAA JJ,

    Go read (or listen on audio disc as I did) Thomas’ autobiography “My Grandfather’s Son.” It’s “eye opening” about how Thomas’s life starting out “dirt poor” in Georgia and how far he’s come in terms of education (the first in his family to get even a college degree) and especially how he thinks and reasons. Contrary to how the media usually portrays him, Thomas isn’t a “lightweight” thinker, but reflects very carefully and deeply. And as you’ve discovered, he’s a very good writer

    In his autobiography, he mentions how, because of difficulties with English due talking primarily in “gullah” when growing up (“gullah” is/was a common verbal speech of African-Americans in the South), he decided to major in English literature at Holy Cross to improve his English language skills. His difficulties with verbal English growin up is also one of the reasons he rarely asks questions at oral argument, but the primary one is that he feels he gets more out of oral argument by listening to what the advocates say in response to questions from his colleagues.

    Seth Waxman who’s become noted in IP circles because of his success in the Microsoft v. i4i case explained it this way: “Justice Clarence Thomas rarely asks questions at oral argument. He’s explained that he doesn’t find oral argument useful in helping him decide cases and how to write opinions tha fairly address the issues. As a consequence, he rarely asks questions. I’ve had, I think, two oral arguments during which Justice Thomas asked a question. I don’t remember what they were, but they were very good.”

  2. I could care a less if they are gay or straight or male or female or black or whatever.

    I care about them have actual experience being a patent attorney.

    Think of it this way: There have been three outstanding judges: Rich, Newman, Rader. 2 of the 3 were practicing patent attorneys prior to sitting. The third Rader patterned himself after Rich.

    I think that speaks for itself. The people that buy these psychotic arguments about laws of nature, abstract, math is somehow makes things not patentable tend very strongly to be non-scientist with a few bizarre creatures like Richard Stern being the exception.

  3. Todd Hughes is not an impressive candidate for ANY Article III judgeship, and particularly ill-equipped for the Fed. Circ court of appeals. I think Identity Politician has it right. Here’s an article from the Washington Blade:
    link to washingtonblade.com

  4. I’ll have to go back and read J. Thomas’s opinion in Hyatt v. Kappos. I thought his opinion in Heller (I think it was Heller, or maybe it was the Chicago 2nd Amendment case, I can’t remember right now) was the most persuasive. I don’t agree with him too much of the time, but he’s a better writer than many of his colleagues.

  5. His psychotic non-sensical arguments have still infected our patent laws. Richard Stern is without the question the person that has caused the most damage to our patent system. Benson put us on a course of psychotic conflict where arguments that have no basis in science are used to try to remove information processing from 101. And, worse, the attempt is through the courts and not congress. Richard Stern’s legacy will be that he was responsible for the single worse decision the SCOTUS has ever rendered on patent law.

    I am sure the corporate greed pays him handsomely to continue his hood winking of judges.

    And, that is why we need real patent attorneys. Real patent attorneys seldom take arguments against information processing for 101. They wouldn’t be able to look themselves in the mirror in the morning if they did.

    And, Ned, the difference is that you will never change your views because you would lose your job if you did.

  6. I understand your point. AAA JJ. It’s very unfortunate that the Federal Circuit, by having certain specific jurisdiction, is treated as less equal to the other circuit courts of appeal, especially as it appears to be by SCOTUS. Frankly, the only court of would feel honored to serve on is the Federal Circuit; I wouldn’t feel that way at all about serving on SCOTUS, given it’s current cast of “characters” with the exception of Justice Thomas, who is by far the most “pro-patent” justice of the lot (read his opinionn JEM Supply and Hyatt v. Kappos, as well as his dissent in MedImmune; even eBay in which Thomas has a far more “balanced” and supportable view of how 35 USC 283 works compared to Kennedy’s bizarre and outrageous concurring opinion, if you can call that).

  7. “Being a patent attorney means they are qualified to understand patent law.”

    LOL. Disproven in the Patently O comments on a daily basis.

  8. So, one moment you said to evaluate arguments and not people and the next we are supposed to salute a clerk of the SCOTUS?

    I read R. Stern’s paper on 101 of how to tie new technology to old technology. Most ridiculous nonsense I’ve ever read.

    Let’s face it. Lemley has taken R. Stern’s place.

  9. I think Richard has posted here a couple of times. He identifies himself as Richard Stern.

    But I see his handiwork in a lot of Supreme Court 101 briefs. He has a style that is unmistakable.

  10. Rich was just such a expert. The best patent attorney ever to sit on the court, bar none. He was great to that extent.

    But he did have a blind spot and in the end, it lead to State Street Bank.

  11. Right, Night. I have no opinions or views of my own. How do I know this. You told me so. It has to be true.

    Get, real, Night. Ad hominems and other character assination is not the way to impress people and win argument. But it is a typical argument type that you an others employ: don't bother to discuss the merits of an argument. Attack the speaker.

  12. Yet another crrp-by trying ever so desparately to have some value by association.

    It’s a compliment, actually.

    Now if we can ever get these crrpsters to actually stay long enough to attempt a discussion on the merits…

  13. The problem is that the fed. cir. needs experts in patent law. That is what the SCOTUS will respect.

    The tension is the belief by the fed. cir. judges that they can define patent law in greater detail then the SCOTUS has. The fed. cir. judges are right and the SCOTUS should stop hearing patent cases. They are not qualified.

    The problem between the Fed. Cir. and SCOTUS has to do with the SCOTUS being ignorant of technology. They are not qualified to rule on a single patent issue.

    So, in a sense you are right, if you put ignorant pigs on the fed. cir. then they are more likely to get along with the SCOTUS.

  14. BOW DOWN TO LORD SOROS! THE GOALS OF THE GREAT USURPER ARE CLOSE TO BEING ACHIEVED. WHEN PATENTS ARE OUTLAWED ONLY OUTLAWS WILL HAVE PATENTS. THIS IS GREAT NEWS FOR KENYA.

    /parody of what surely must be parody off

  15. I think Taranto has that respect. He clerked on the Supreme Court and could be appointed to any Circuit Court without crossing one's fingers. If he wrote an opinion, the Supreme Court would give it deference, and might even cite it rather than overrule it.

    I am also beginning to have a great deal of respect for O'Malley. She alone on the Federal Circuit was a former District Court judge. Her intelligence shines.

  16. I think Rader has the same blind spot as did Rich on 101. He would say, for example, a claim to a programmed computer passes 101 because the cliam is to a machine. Rich said this exact same thing in 1972, in his overruled decision in Benson.

    Rader is hostile as he can be to the MOT, mocking it in Mayo, opposing it in Bilski. He never discusses it at all in his own opinions. And yet, all nine Justices cited it with approval in Bilski.

    Rich gave us Benson, then State Street Bank. He gave us his construction of the '52 Act, insisting that 101 was "threshold," thereby endind any analysis on what was actually new in the claim except by admission….. What baloney.

  17. Software patents may go the the Supreme Court:

    link to online.wsj.com

    Hopefully the justices will have time to read a copy of Boldrin and Levine’s book: Against Intellectual Monopoly, that I’m sending each of them before they get the case, then they can come to the correct decision. I’m really starting to get optimistic. One of my purposes in life is to educate society on the real and harmful impact that IP laws have on society. I desperately do not want America to become a third world country.

  18. Unfortunately, that won’t change so long as the CAFC has its jurisdiction limited so much. Particularly, the lack of criminal procedure cases, particularly, and other constitutional cases will keep a CAFC judge from being appointed to the Supreme Court, given how much of the Supreme Court docket is taken up by criminal cases and constitutional issues, particularly the well-known ones. If you look, in 30 years, there has been only one former Federal Circuit law clerk to clerk for a Supreme Court justice.

    Quite honestly, the best way for the Federal Circuit to get judges who could potentially make it to the Supreme Court would be to combine the D.C. Circuit and Federal Circuit, but there’s a lot of reasons to believe that won’t happen.

  19. “Moreover, I would like to have as members of the Federal Circuit judges who could serve on any circuit court with respect, and could potentially serve on the Supreme Court. I’m not sure these two gentlemen fit the bill.”

    This is an excellent point. The Federal Circuit is, or at least should be, equivalent in stature to the other 12 federal courts of appeals. I don’t think it is thought of in that way by SCOTUS. Nobody would be surprised if the next nominee to SCOTUS came from any of the other 12 courts of appeals, but I think we’d all be surprised if any of the Fed. Cir. judges was nominated. I think the reputation of the Fed. Cir. as being a “specialized” court is not helpful. We don’t need judges to “protect the patent system” we need judges whose legal skills, decisions and opinions will earn the respect of SCOTUS.

  20. Ray Chen is a great choice for the sake of America. The IP system needs to be made much weaker and irrelevant, if not outright abolished. Unfortunately the IP laws just do not work in the real world like people, especially patent lawyers, think they do. I’m sending all of the judges on the CFAC and the US Supreme Court copies of Boldrin and Levine’s book, Against Intellectual Monopoly. This wonderful book does an outstanding job of explaining the real and highly detrimental effects that IP laws have had on America, innovation and the economy. I’m getting goosebumps just thinking that the truth about the IP system is gradually but surely percolating up through to the decision makers and people that can affect real change in America with regards to the IP system.

  21. Ned: “Why is it that anyone who has the respect of the Supreme Court is deemed by you, and others of your ilk, to be threat to the “patent system?”

    The same exact question can be asked of you in reference to Rich and Rader.

  22. The CAFC was formed to standardize patent law

    Shhhhh – don’t say that too loudly, or you might upset Ned.

  23. It’s sometimes difficult to tell that, Leopold, as your mis-attacks stand out much more noticeably.

    But since you decided to put down the quiver, your other discussion points may rise to be noticed.

  24. This is a really great comment. Really great. Out of all the people in the pool to chose from why aren’t we choosing people that would command respect from the patent bar and the SCOTUS.

    I don’t think either of these candidates will command respect from either the patent bar or the SCOTUS.

  25. You might have to ask yourself this simple question:

    “Why is it that anyone who has the respect of the Supreme Court is deemed by you, and others of your ilk, to be threat to the “patent system?”

  26. It’s working great, thank you very much

    No.

    It is not.

    Once again you try too hard to be a smart-@$$, and miss the smart.

    Completely.

    So unless that is really your aim (and it might be), you should reconsider your tactics.

  27. “Why can’t we persuade the likes of Lemley to take a position on the court?”

    Right. And why not just abolish the patent system altogether?

  28. Why do I believe they going on the Federal Circuit’s promotion for these two folks? Shouldn’t we be looking for outstanding attorneys who will have to sacrifice to take the position?

    Moreover, I would like to have as members of the Federal Circuit judges who could serve on any circuit court with respect, and could potentially serve on the Supreme Court. I’m not sure these two gentlemen fit the bill.

    Other than that, I know little about either man. They could be qualified and could perform well on the Federal Circuit. But it would be a gamble . Most concerning is that their presence on the court will not elevate that court, particularly in the eyes of the Supreme Court. To the extent that any of us would like the opinions of the Federal Circuit to carry weight with the Supreme Court, they have to have members of the Federal Circuit that will cause them to pause and consider.

    I know of certain well-known professors who Supreme Court has recently cited numbers of times with respect. Lemley comes to mind; but there probably are others. Why can’t we persuade the likes of Lemley to take a position on the court?

  29. Give us some sci/tech PhDs. I know some current CAFC judges have a PhD. CAFC justices should know well BOTH facts and law, and this country has enough of qualified people.

  30. (it’s not working like you think it is)

    It’s working great, thank you very much. I said something completely ridiculous and unmistakeably sarcastic, and you chimed in with a sincere “he agrees with us!”

    Thanks for confirming that you didn’t know I was being sarcastic. Very telling, that.

  31. If you have actually been a practicing patent attorney for a significant amount of time, then you will be the first to say that you don’t need to be a practicing patent attorney to understand patent that I’ve ever communicated with.

    I agree in the rare exception you get someone who through heroic effort understand patent law without practicing patent law, but they are rare (sometimes quite gifted like Rader.)

  32. So, you have done litigation, prosecution, design around products, claim charts, opinions (all sorts), appeal briefs, invention disclosures, draft patent applications, respond to office actions, interview examiners, etc.

    Or are you one of those hot shot boys that got a job at like Fish or Finnegan and do litigation?

  33. Yes, I am. To the extent that I understand you, I disagree with you. I think we agree that at least a few practicing patent attorneys on the Federal Circuit would be a good thing. However, I don’t believe that the Federal Circuit should only be comprised of practicing patent attorneys or that only patent attorneys are capable of understanding patent law.

  34. No. Understand what I am saying, maybe, depending on whether you have actually practiced patent law or not.

    Are you a practicing patent attorney?

  35. Especially after he just got done saying it wasn’t about agreeing, but about understanding.

    You are doing that misrepresenting thing again.

    Please stop.

  36. I may disagree with people that have actually practiced patent law at times, but unless they are bought off, I have never run into an actual practicing patent attorney that makes outrageous statements as we have seen recently from the SCOTUS and some of the “judges” at the Federal Circuit who never practiced patent law or from the DOJ or USPTO.

    Give us Newmans and Richs who have practiced patent law. They will have the respect of the patent bar. These bozos are a disaster.

  37. There is a difference between being qualified and agreeing with the perspective of patent attorneys. … the Federal Circuit isn’t supposed to be about patent attorneys helping other patent attorneys.

    Exactly. As long as the independent judiciary agrees with us all the time, who cares whether they have reg numbers?

  38. Being a patent attorney means they are qualified to understand patent law.

    Do you really expect us to believe that, Night Writer Patent Attorney?

  39. And the sky isn’t blue. It’s red. Get used to statements like that. I am sure that the new “judges” will give us plenty more like that.

    Having experience as a patent attorney does not mean that they are there to help patent attorneys. Boy, we can tell you are heavily biased and should be given zero weight.

    Being a patent attorney means they are qualified to understand patent law.

  40. The CAFC was formed to standardize patent law. Is there some rule against appellate courts having multiple functions?

  41. It is easy to forget that the CAFC isn’t just about patent law and patent law isn’t just about patent attorneys. There is a difference between being qualified and agreeing with the perspective of patent attorneys. Chen and Hughes don’t have experience prosecuting patents, but the Federal Circuit isn’t supposed to be about patent attorneys helping other patent attorneys. Chen is more than qualified to address patent issues albeit from the PTO’s perspective. As for Hughes, he is clearly qualified for the other 53% of the CAFC’s docket.

  42. In other words, someone who actually works with patent law on the ground level. And, someone who has a registration number.

  43. Plus, anyone from the DOJ is a bad choice. The DOJ has historically been the most anti-patent agency involved with patents. And, they tend to extremely arrogant and quite willing to ignore reality.

    Horrible, horrible, horrible, choices.

  44. Now I think we know why Kappos is leaving. Probably Obama forced him out so he could tear down the patent system. After all, the liberals seem to dislike patents–which is odd. Soda-inmy-ear hates patents.

  45. Yes it is. Chen is the only one I’ve ever heard in oral arguments that I felt was anti-patent from the solicitor’s office. He is particular anti-information processing.

    He is a disaster.

  46. Raymond T. Chen? Is this the same Chen that has been arguing the anti patent positions of the PTO? MoT? Conflation of Categories etc. ? Talk about nominating the Fox to join the hen house!

  47. Ray Chen might have been acceptable if the other two were real patent attorneys. But, Ray is not a real patent attorney. He is a government attorney with two years as an associate.

    Not a brilliant choice. Marginally qualified.

  48. I should have added conducted examiner interviews, conducted oral arguments at the board, written and supervised the writing of patent applications, worked with inventors taking invention disclosures.

  49. So, skyywise:

    Have any of them worked with in-house counsel to prevent copying of their product? Worked with start-ups to build their IP portfolio? Written licensing agreements? Claim charts? Freedom to operate opinions? Evaluations with in-house counsel of how to get around someone else’s patent? Etc.

    That is a patent attorney. Those are the kind of people —like Newman and Rich–that understand patent law and can see through nonsense arguments.

    These 3 nominations are likely to provide us with many years of terrible jurisprudence. Perhaps they can form a club–we know nothing about patent law but it doesn’t matter for we are reality.

  50. And skyywise? Are you a practicing patent attorney? If you are, then you would know that those “qualifications” don’t even come close to cutting it.

  51. “Throughout his career with the Department of Justice, Hughes’s practice has been devoted to matters of federal personnel law, veterans’ benefits, international trade, government contracts, and jurisdictional issues regarding the United States Court of Federal Claims. He has extensive experience before the United States Court of Appeals for the Federal Circuit, the United States Court of International Trade, and the United States Court of Federal Claims, and he has garnered a number of special commendations from the Department of Justice and a special contribution award from the Department of Veterans Affairs.”

    Jurisdiction of the Federal Circuit: patent, VA affairs, ITC appeals, gov’t contract claims from the CFC. Todd Hughes sounds eminently qualified to sit on the Federal Circuit, and I’m sure he can learn patent law.

  52. I remember Ray Chen as being anti-information patents, although I can’t argue with the fact that he is qualified.

    Todd Hughes is clearly NOT QUALIFIED! Terrible nomination. I am sure we can count on many years of abstract bizarre nonsense from such a nomination. Why not just put Soapy-dope-ear in charge of the Fed. Cir.

  53. Looks like two great nominees. Ray Chen is a great choice, with a lot of patent experience and particularly the PTO side that none of the other Judges have. And even though Todd Hughes doesn’t have a patent-specific background, he has a lot of experience in other areas of the Federal Circuit’s jurisdiction, which is just as important.

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