Choosing the Next Judicial Appointment for the Court of Appeals for the Federal Circuit

In a recent article picked up by Howard Bashman, Legal/Technology reporter Brenda Sandburg began speculation on President Bush’s next potential appointment to the Court of Appeals for the Federal Circuit (CAFC). The CAFC consists of a panel of twelve judges plus several judges who have taken senior status.  There are currently no openings on the court.  However, it is expected that at least one of the judges will move to senior status this year — leaving room for a patent law expert to fill the slot. 


In a preemptive move, the Federal Circuit Bar Association has put its weight behind District Court Judge Ronald Whyte of San Jose who, for his part, is reportedly not dead-set against the idea.  Judge Whyte has received strong praise from both patent litigators and academics.  During his 12 year tenure as a district court judge, Whyte has handled more patent cases than any other district court judge in the country. 

The CAFC has the highest reversal rate of any federal appellate court, and many believe that a judge with trial experience is needed to bridge the gap between trial courts and the appellate court.  In an impromptu survey, one patent litigator commented “my bottom line is that I want a trial judge on the court — and as many as we can get!”

Because CAFC opinions rarely tread on political hot-button issues, appointments to the court are often made “inside the belt-way.”  One DC name that rises to the top is Judge Ed Damich, who is the Chief Judge of the Claims Court and former academic.  Three other judges who were mentioned include Judge Roderick McKelvie, who recently stepped down from his office as a Delaware District Court Judge, Judge James Holderman of the Northern District of Illinois, and Judge Kathleen O’Malley of the Northern District of Ohio. All of these judges “know a great deal about patent law, and command the respect of the Federal Circuit judges.”

The top litigator in-line for the job may be John Whealan, who has racked up an impressive record of wins before the CAFC as Solicitor for the United States Patent & Trademark Office.  Two other politically active possibles are Robert Armitage of Eli Lilly and Michael Kirk of the AIPLA.  There is another group advocating for a true academic on the court.  According to one law professor, “the Federal Circuit has heretofore paid little attention whatsoever to the large (and growing) body of legal and economic research on the patent system — and has even actively resisted such information at times.  Given its position in the US patent system, the dialog between academy and the court needs to be much better, and perhaps the appointment of an academic could move this along.”  Several professors suggested by Patently-O readers include John Duffy (clerk for Justice Scalia), Mark Lemley (Stanford), and Mark Janis (Iowa).  Of course, Berkeley’s Robert Merges may be the most likely professorial candidate.  Merges is well respected by both his peers and industry and his book (co-authored by John Duffy) sets the standard in law schools.