Patently-O Bits and Bytes: Federal Circuit Judicial Nominees

  • President Obama recently announced KATHLEEN O’MALLEY as his nominee for the open position on the Court of Appeals for the Federal Circuit (CAFC).
  • Next Opening: Chief Judge PAUL R. MICHEL has announced that he is retiring May 31, 2010.
  • Judges PAULINE NEWMAN, ALAN D. LOURIE, ARTHUR J. GAJARSA, TIMOTHY B. DYK, and HALDANE ROBERT MAYER are all currently eligible to take “senior status.” Judge WILLIAM C. BRYSON will be eligible on his 65th birthday (August 19, 2010). Judges RICHARD LINN and RANDALL R. RADER will become eligible in 2012 and 2014 respectively. Of course, a judge can retire at any point. The Senior Status benefit is that the judge continues to receive a full salary but a reduced workload. However, Judges on senior status do not participate in en banc rehearings (unless the senior-judge sat on the original panel) and are never considered the presiding judge of a panel.
  • [Update] Senior Judges do receive a copy of decisions before they issue, but does not have authority to request an en banc poll.

18 thoughts on “Patently-O Bits and Bytes: Federal Circuit Judicial Nominees

  1. 18

    At the bare minimum, any new appointees need to have District Court experience (e.g., O’Malley)!! Not a single member of the sitting CAFC has any previous District Court experience???!!! Really??!! And these are the best qualified to serve on the court?

    “The most important* circuit court in the nation” . . . that hardly ever decides any Constitutional issues . . .

  2. 14

    John Duffy, aside from having the patent-cursed initials “JD,” would be an excellent choice. He’s been a thought leader on several aspects of patent law, and he’s taken both pro- and anti-patent stances on various issues (KSR comes to mind). I suspect he would be too conservative for the Obama administration (Scalia clerk + Federalist Society), though the CAFC would be the least dangerous court as far as politization goes. I’d love to see a practitioner appointed again. Perhaps a practitioner with some academic cred would be palatable, like Wegner?

  3. 12

    ec/wc, any word on Judge Fogel’s interest in moving to Washington? We had a much nicer winter out here in the SF Bay Area than they did in DC. We’ll surely have a nicer summer as well.

  4. 11

    I’d pick Jeremy Fogel from N.D.Cal. He’s handled a lot of Silicon Valley patent cases. He’s wicked smart and nice, too.

  5. 10

    Cheesy post?! You kidding us, caesar? Dennis is discussing the same thing Chief Judge Michel has mentioned in several recent speeches.

    This is a huge deal. The most important* circuit court in the nation might very well have a majority of new appointees in the next couple of years. Whatever you think about CAFC jurisprudence or its current judges, the stakes are very high in these appointments.

    * Patent practitioners unfamiliar with the CAFC’s other areas of appellate jurisdiction should take a look at the dollar amounts involved in the Court of Federal Claims and non-patent Court of International Trade cases.

  6. 9

    Warning – off-topic subject matter below – Warning.

    Below is one of the best “sum-up” links I’ve seen.

    Please take time to watch it.
    It’s not very long,
    and it’s very well done.

    However, it definitely is not for pinheads.

    link to

    How do you spell “I m p e a c h”?

  7. 8


    Perhaps you have someone else in mind?

    I’d be interested in who you are thinking of, if for no other reason than other vacancies will be upon us and we should publicly vet the candidates (since the current vetting process obviously is somehow flawed).

  8. 5

    A clarification on senior judges’ and retired judges’ salaries: Even if retired, a federal judge continues to receive a full salary (equal to the salary at time of retirement), since the judge was appointed for life. The difference is that senior judges continue to receive “the salary of the office,” meaning that they are eligible for salary increases, while retired judges are not. 28 USC 371.

  9. 4

    Although, according to the practice notes for Federal Circuit Rule 35, senior judges who sat on the original panel may participate fully in the rehearing en banc.

  10. 3

    Dennis, a correction. The pre-issue internal circulation is made to all judges, including the senior judges. IOP #10 P 5. The senior judges do not get a vote on en banc nor the ability to hold the opinion pending en banc, but they do get to receive the opinion and send comments under IOP # 10.

  11. 2

    Assuming O’Malley is confirmed, adding much-desired district court experience to the Fed. Cir. bench, I’d like to see Michel’s seat go to someone with a technical background. Aside from some engineers, there hasn’t been a heavyweight technical judge added since Lourie (chem PhD) in 1990. If you’ve ever researched a biotech-specific issue, you’ve probably noticed a disproportionaly high percentage of those opinions were penned by Lourie. (And even if you disagree with an opinion of his, he’s always always comprehensible and reasonable.) While I’d like to see someone else with a similar background maintain this tradition, it’s probably more important to get someone with computer industry experience first.

  12. 1

    Dennis, this is a cheesy post. It’s almost like a death watch for the judges.

    plus you might want to reconsider the accuracy of the last statement.

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