Where is the Next Federal Circuit Judge?

[Updated at 2:34pm on 1/8/10] Federal Circuit Judge Alvin Schall moved to senior status in early October 2009. Judge Schall gave notice of his intent to take senior status in August 2009, and insiders knew much earlier. This delay leads me to question: Where is the next nominee? Chief Judge Michell has announced his intention to retire in the coming months and at least one additional slot will probably open in 2010. At some-point soon this backlog may begin to resemble the PTO.


Professors: Several leading IP law professors played important roles in the Obama campaign and transition. These include Mark Lemley (Stanford); Arti Rai (Duke); Beth Noveck (now at the White House); and Chris Sprigman (UVA). Other potential professorial candidates include Margo Bagley (UVA); Jay Thomas (Georgetown); Clarisa Long (Columbia); Peter Menell (Berkeley); Pamela Samuelson (Berkeley), etc. Although practitioners would likely find some problem any law professor candidate, a more-left choice would be Josh Sarnoff (American).

Other potential nominees include Sharon Barner (PTO Deputy Director) and Susan Davies (associate White House counsel). Barner is particularly interesting as a long-time patent litigator and now PTO-insider.

District Court Judges: One difficulty in appointing a district court judge is that Federal Circuit judges are legally required to live close to DC. In addition, district court judges who were appointed by Clinton are for the most part now aged 60+. Finally, many district court judges are not interested in the limited subject matter of the Federal Circuit. Some potentials include Judges Kathleen O’Malley (N.D.Ohio); Patti Saris (D.Mass); John Ward (E.D.Tx.); and Leonard Davis (E.D.Tx – Bush Appointee). 

District Court Judges Redux: A recent article in the Recorder notes that many California Patent Attorneys (i.e., the indefatigable Ed Reines & Co.) are pushing for N.D. Cal. Judge Jeremy Fogel to be Nominated. Judge Fogel is clearly an expert on the patent laws and patent litigation. He did not deny (or confirm) his interest in the spot. The article also mentions Judge Sleet (D.Del.), Judge O’Malley (N.D. Ohio), Judge Saris (D.Mass), Professor Lemley, and Chip Lutton (Apple).

Other Redux: The largest pool of candidates comes from practice. More than half of the current Federal Circuit judges worked as intellectual property attorneys at law firms or in-house—including Judges Newman, Lourie, Gajarsa, Linn, Dyk, and Moore.

 To be clear, this list is not intended to be a short list by any means. The patent law community is ripe with attorneys who are smart, clear thinking, and experienced. My point is that the administration should move forward soon with a nomination.

66 thoughts on “Where is the Next Federal Circuit Judge?

  1. 65

    “The Federal Circuit was given varied jurisdiction so that it owuld NOT be just a patent court.”

    Ahem, the Federal Circuit was designed to replace the geographic Circuit Courts of Appeal and is (and has been) the de facto court of appeal for *all* the cases that are heard in the federal district courts only some of which are patent cases. How could it NOT have a varied jurisdiction?

    Please read this paper to understand more about the history of our venerable Federal Circuit:

    link to papers.ssrn.com

  2. 64

    “The little stars that want to come and tell us how to practice are the ones that publish political based articles. I think the proposed rules that were finally burned were politically based. Think Lemley. His attitudes are politically based.”

    NWPA, this is pure poetry.

  3. 63

    I think someone like Learned Hand (the Giles Rich of his day) would also be a great choice. None of the proposed candidates come even close.

  4. 62

    Interesting. The Federal Circuit was given varied jurisdiction so that it owuld NOT be just a patent court. yet the commentators talk as if only IP lawyers, IP profs, and judges who IP experience could be qualified. How about folks with experience in the other areas of Federal Circuit jurisdiction? Or just really smart lawyers?

  5. 61

    Yes, 6, er, um, ScotusShmotus, stop being a silly baboon. “Quality” is the operative word there. The little stars that want to come and tell us how to practice are the ones that publish political based articles. I think the proposed rules that were finally burned were politically based. Think Lemley. His attitudes are politically based.

    Also, I think many people look at Judge Rich and his career as the type of person we would like.

  6. 60

    6, er, um, ScotusShmotus,

    once again your ability to be wrong comes shining through. Read my missive once again. The point is not about aggravating me, or about ignoring AI. The point is much larger and much more direct to MaxDrei himself.

    Really Max, do you want to be as famoose as 6 (and 6, that’s not a good thing).

  7. 59

    NWPA- “The answer to that is found in the lack of quality of the articles they publish.”
    I see. Academics publish low quality articles, therefore they are unworthy of a judgeship. So instead you want to appoint people who do not publish articles at all. Makes perfect sense.

    Max- Ignore Noise. If you’re aggravating her, then you must be doing something right.

  8. 58

    Filter is very active again today.


    We’ve been through this before. Do you not remember my nearly constant haranguing just prior to your change from which you now seem to be receding from?

    The point is not whether AI (or any single particular character here at the Trainwreck) does or does not take you seriously. You obviously do not care about that particular person.

    The point is in the general credibility that you foster. On occasion even you like to post on things that you feel are important. By turning once again down the path of not caring what you put up to “learn from the reaction” you run the very real risk of marginalizing yourself and your beliefs.

    I sincerely believe that you are better than that. I implore you to stay true to your changes as I for one do learn about the EPO from what you intelligently post. Don’t play the fool provocateur – we already have plenty of that type here.

  9. 57

    American politics and law have devolved from capable men and women with valuable things to contribute to help promote prosperity for the doers, into the the biggest m0r0n with the biggest egos looking for valuable things to destroy on behalf of those who contribute nothing.


  10. 56

    There you go again, NWPA. You and who else?

    But you personally, you just feel free, do, to ignore whatever “substance” you manage to find in any of my “arguments”. That’s perfectly fine with me.

    Ford: may I ask, who are the ones currently in post at the CAFC who lack any knowledge of technology? Is there a correlation between quality of legal analysis and depth of technological background? I can see that a technological background is vital at the instance below the CAFC, where the case is tried, but at appeal court level it isn’t so clear to me.

  11. 55

    For god sake, give us judges who have actually practiced patent law and understand it! If there be academia who fit that then fine, but let’s not go the “make fit” route. Appointing academia without actual experience will be a disaster. Could we please for once have judges with a technical background rather than American history or political science. Geez!!!!

  12. 54

    >>more about how Americans argue.

    Going forward, we’ll ignore the substance of your arguments and focus on the pattern of your arguments.

  13. 53

    Noise, why must I “try harder”? To please you? When you start paying me for my contributions, then you can tell me what to do

    What makes you think my “Just for fun” mode and my “Post to learn” modes are mutually exclusive? Trying so hard to distinguish between the two is a complete waste of your precious time.

    Perhaps I should clarify. What I’m using this blog to learn about is not so much US patent law, more about how Americans argue.

  14. 52

    When MaxDrei starts lecturing on intellect it is hard for me to determine if he is in is don’t-think-this-is-for-fun mode or his I-post-crap-in-order-to-learn mode.

    Try harder Max – you are slipping into old habits (might be your friends’ influence).

  15. 51

    >>the USA is a meritocracy

    That’s too much for me in a day. The short answer is clearly not for judicial appointments.

    The short answer to your second question is no. The former commissioner and his proposed rules are sufficient evidence.

  16. 50

    And there was me thinking that the USA is a meritocracy. You’ve disillusioned me, Night Writer.

    Would you agree, that it’s much easier to criticise somebody else’s contribution than it is to come up with a helpful insight of your own? Would you agree with me, that those with the least intellectual firepower are often the quickest to announce it as lacking in others? Think about which of your patent attorney colleagues are first to announce that a particular PTO Examiner is short of the requisite degree of intelligence. Are they the ones with the sharpest intellect. If so, your experience conflicts with mine.

  17. 49

    >>the fire-fighters you need, in order to avoid >>total melt-down?

    The answer to that is found in the lack of quality of the articles they publish.

  18. 48

    NWPA writes:

    “Let’s just get someone that…. don’t pledge to burn the system down.”

    Is that really so difficult? Just how many arsonists are there in the upper reaches of US patent law?

    But could it be that the house is already on fire, and that these people are in truth the fire-fighters you need, in order to avoid total melt-down?

  19. 47

    And what those articles really are are pledges by the writers that they will take political positions as judges and in the case of Moore that she will be very anit-patent.

    Let’s just get someone that understand IP law and has practiced it for some 10 or 20 years. Apply the law and don’t pledge to burn the system down.

  20. 46

    I don’t know about these conspiracy theories, but I do know that MM, aka the baboon, posts under multiple names. That should give you a good indication of MM’s integrity.

    As for where are the people that have experience in prosecution and litigation–come on. At the firms I’ve worked for there are dozens of such people. They just don’t light write articles that are geared to the politicians and media to excite them that gee this person knows the problems and can fix them. Gee, who was it that wrote some ridiculous article about continuations? Could it be Moore.

  21. 44

    Mr Pidity, may I be the first to admire whoever gave you your name. Not seen that one before. First laugh of the day.

    Second laugh is your assessment of the Watchdog blog. I posted there once, but the tone of the reaction from Mr Blogmaster Quinn so offended me that I never went there again.

  22. 43

    I don’t know which thread it was on, but sincere thanks to whoever pointed out the Bilski thread over at IPWatchbag, wherein one can watch Gene Quinn, Grand Poobah of IPbaggers, spout such retardo gems as “If you are against software patents you are not an innovator. Innovators want patents, those who do not innovate and copy others do not want patents. If you were an innovator you would either want patents or not care about others getting patents.”

    I loooove watching him get his ar$e handed to him. He reminds me of whatever that guy’s name was who was spokesman for the National Association of Realtors at the height of the housing bubble. That is, a person deeply invested in the status quo, shouting against all reason that everything is fine (Housing prices always go up! / Every innovator wants patents! Patents always spur innovation!), if anything we just need to (make it easier to buy and pay more for housing / easier to get and enforce a patent). Also, I can’t read one of his comments without hearing it as if spoken by Comic Book Guy from The Simpsons.

  23. 42

    Some threads seem to find the lowest level of discourse a lot more quickly than others. This time it takes just a few hours to get to baboons and teabags.

  24. 41

    Where is the list of experienced patent litigators who also have considerable patent prosecution experience?

  25. 40

    7 and NWPA are right on. The little rock stars that just say and do controversial things to grab some attention have no business being in a position of power. It just wouldn’t be good for the country or ANYONE’s business.

    Caesar, you’re just wrong about Dennis. I actually know the guy, have spoken to him about his actual former practice, and believe that he understands both sides of the coin: the reason and necessity of patents to promote the useful arts and the public policy positions of having well defined patent laws.

  26. 38

    oh no…
    BigGuy must be a schism of Malcolm.

    …here we go again with the Conspiracies.

  27. 36

    NWPA: “baboons can have at my posts”
    Jules: “you posts [don’t] make even half-decent baboon fodder”


    As for Mooney notice that he can say “tee bagg er” and my posts get deleted if I mention the word.

    THAT is one of the clues to those paying attention.

  28. 35

    Don’t flatter yourself, NWPA. I don’t think your posts make even half-decent baboon fodder. They do however make for a good broken record. (couldn’t resist). You have a great weekend!

  29. 34

    O’Malley in my opinion is terrible. We have to deal with her and in my opinion she gets reversed to often because she doesn’t understand the law.

    Bad judges make bad law.

  30. 32

    The best guess is that Mooney is a SPE and that 6 is an examiner without signature authority.

  31. 30

    Baboon wrote: >>Long overdue.

    At least you are beginning to accept yourself as a baboon.

  32. 29

    Keep Rai and Lemley away from the CAFC. My god they would be utter disasters.

    Of course, Obama will probably appoint Lemley. He already put Rai at the USPTO.

  33. 27

    I’ll take a judgeship, if it comes with a lifetime Twinkie entitlement. I promise not to get cream on the briefs…

  34. 25

    You will notice too baboons that the experienced patent attorneys that I know who are actually practicing patent law would be happy if they just appointed someone that has practiced patent law for at least 10 years.

    I feel–and probably we feel–that we are probably safe with someone with a good academic background who has actually litigated and done prosecution work for at least 10 years. 20 would be better.

    As oppposed to the baboon position of wanting to pick someone based on their political agenda. Notice that these political agenda people seem to become the little stars. Look at the way Moore got into the spotlight.

  35. 24

    (Disclosure: I am a pharmaceutical brand side lawyer who once worked at the same firm). I like Shashank Upadhye for the Federal Circuit. He has practiced in big and small firms, has a PTO reg number, worked in corporations and is now heading the IP department for a global company. He has prosecution and litigation experience. He did brand side pharmaceutical work and now does generic work. He litigates alot (although now in-house). He is a great speaker at seminars, is very fair and open minded. He has written lots of law reviews and a whole treatise on FDA and patents law. So he has what Profs lacks, practical work experience over a long term. He has published just like an academic too. So it looks like he is practical and professorial.

  36. 22

    No kidding, 6. It’s beyond self-parody. Lemley is a “media star”? Ha! Where was Lemley when Greg Aharonian was cementing his handprints on the Patent Walk of Fame last summer? Everyone else was there. Even Ray flew in by helicopter from Aspen. But I didn’t see Lemley.

  37. 21

    “I nominate 6

    Posted by: beltway”

    That’s mah home turf stickin’ up for me. Thank you sir. I’m afraid I’m probably not eligible for another 10 years or so if this is anything like being a senator.

    “Now that, my friend, is truly EVIL.”

    That vid above was good, but I think this one was better:

    link to break.com
    Now Noise, don’t be jealous.

  38. 20

    “Media stars like Lemley are a like the financial industry they are sucking the blood from this country for their own needs at the sacrifice of the integrity of our system and our people.

    Posted by: Night Writer Patent Attorney”

    Was that intended to be as ironic as it came across as being?

  39. 16

    OldTimer, I would not blame the FedCir for the current state of the law of obviousness; they made it make sense for the first time in 100 years until the Supremes came out with KSR.

  40. 15

    I think the correct term is “rife” not “ripe.” Rife, as in abundant, not ripe, as in old, moldy, and stinky.

    If his previous appointments are any indication Obama will appoint an academic, and one who is strongly anti-patent. I look for Lemley or Rai, both of whom would be a disaster for the patent system.

    I’m with the posters who say it is time to kill the Federal Circuit. This court was supposed to be a specialized patent court whose judges presumably should have been drawn from the patent community. Increasingly, Federal Circuit appointments have been based on political patronage rather than expertise.

    And the court has failed in its basic mission of developing a unified body of patent law. The law of obviousness, the cornerstone of patent law, is now a much greater cluster**** than it was before the Federal Circuit was formed. It’s time to kill this beast.

  41. 14

    I’d like to see James Holderman there, CJ ND. IL, as it seems he loves IP. Only problem is he’s a Reagan appointee, and does a great job on the district level.

    The big unknown – A democrat which has lost their seat due to congressional redistricting, which will most certainly occur after the 2010 census.

    @ caesar – At least Dennis actually practiced in the field.

  42. 13

    >>Having fun riding down that slippery slope?

    No. It is miserable to see our system being destroyed.

  43. 12

    “Appointing a person like Lemley would be push us even closer to the tipping point of the destruction of our patent system.”

    Having fun riding down that slippery slope?

  44. 11

    it’s funny that a law professor writing a list of potential Fed Cir judges puts law professors at the top of the list.

    What crap.

  45. 10

    Used to be that senior practitioners were appointed to be Commissioner of Patensts– sort of a capstone to a successful career. I think that would make sense for the Fed.Cir., too.

    I wholeheartedly agree that academics with no real experience have no business serving as judges. Hell, they should not even be teaching. Remember, those who can, do; those who can’t teach.

  46. 9

    This business of funneling all patent appeals to just one circuit is a mistake, as it would be in any other area of the law if only one court could hear appeals on a subject. If the ninth and second circuits were added to the mix (others may suggest different favorites), we’d have many more equally smart of often just as patent-savvy judges helping mold the law and adding clarity and predictability where the Federal Circuit has not.

  47. 5

    And I doubt any judge from E.D. Texas would ever pass muster. Especially Judge Ward, who I think was the one smacked down in one of the venue transfer cases.

  48. 4

    I second NWPA’s and HD’s comments. With all due respect, we don’t need any more academics on the Federal Circuit bench. Judge O’Malley would be a good choice (she also was in IP before joining the bench) and fulfills the suggestion by current Chief Judge Michel to get someone with real trial experience. I’m sure there are others who would be good choices, but academics are not the way to go to fill this vacant spot and others that will be coming.

  49. 3

    Yes, Dennis, Humorless is correct about Moore.

    Lemley is like Wolfram in science. Someone who will burn the house down to get the lunch they want.

  50. 2

    Dennis, Kimberly Moore came from academia, not the practice side. She was never a prep-and-proc person; she was an IP litigator for two years at a firm before moving to academia, and if her writings are anything to go on, the litigation experience did little if anything to ground her in the realities of the patent procurement process. To say that she came from private practice is an insult to someone like Alan Lourie, who spent many years in the trenches in the pharma industry before being appointed to the CAFC.

  51. 1

    Someone like Prof. Lemley would be a disaster. Don’t appoint anyone that hasn’t practiced patent law. Prof. Lemley has done much harm to patent law with his frothy reasoning and glib manners. Please get someone in there that has actually practiced patent law and understands science and technology. Media stars like Lemley are a like the financial industry they are sucking the blood from this country for their own needs at the sacrifice of the integrity of our system and our people.

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