[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.