By Dennis Crouch
Chief Judge Randall Rader has announced that he is stepping down from his position as Chief Judge – effective May 30, 2014. According to the Federal Circuit’s rules of succession, Judge Sharon Prost will succeed Judge Rader as the next Chief.
Judge Rader is a longtime member of the court and has been a gregarious Chief Judge. His willingness to have frank and open discussions on a variety of patent law issues has been welcomed by the bar as has his work to build ties with patent law authorities from around the globe. Those connections will continue to serve the court well into the future. However, this outgoing approach has also been criticized as contrary to the traditions of judicial detachment and seclusion. Judge Rader is eligible to take senior status (and thus retain his full salary of approximately $170k). However, he has indicated that he will remain in active service for now. Although it is unclear whether related, Judge Rader’s transition comes amidst a potential brewing mini-scandal involving a public endorsement for veteran Federal Circuit litigator Ed Reines. There were three years remaining in his seven-year term as Chief.
Judge Prost has been on the court since 2001. During that time she has authored hundreds of patent law opinions, including the recent en banc decision in Bosch v. Pylon and a dissent in Apple v. Motorola. Prior to joining the court, she worked as the Senate Judiciary Chief Counsel under Orrin Hatch and has worked in the Federal Government since her graduation from Cornell in 1973. She was appointed to the court by President George W. Bush. Judge Prost is also known as a litigant – her early 1990’s custody battle resulted in a D.C. Court of Appeals opinion that continues to be taught in law schools. Link.
Moving forward, Chief Judge Prost’s history in government will be instrumental in considering the new administrative-law battles arising from the USPTO’s Patent Trial & Appeal Board.
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Succession: According to the rules of succession, the next Chief Judge is designated as the most senior judge on the court who is in regular active service but who is also not yet aged 65 and who has not previously served as Chief Judge.
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Update: Judge Rader has distributed an open letter that provides an explanation and appears to fully confirm the story that regarding his recent recusals and vacatur of his position as Chief Judge.
In particular, Judge Rader confirms that he previously emailed noted attorney Ed Reines of the Weil firm praising his advocacy and suggesting that the email could be used as a client development tool. The letter then became public as Reines was arguing before the court. Judge Rader now writes:
I have come to realize that I have engaged in conduct that crossed lines established for the purpose of maintaining the judicial process whose integrity must be beyond question. It is important to emphasize that I did not and would never compromise my impartiality in judging any case before me. But avoiding even teh appearance of partiality is a vital interest of our court, and I compromised that interest by transgressing limits on judges’ interaction with attorneys who appear before the court. I was inexcusably careless, and I sincerely apologize.
As I highlighted above, Judge Rader’s demeanor is gregarious and he is open with his praise. I have seen him publicly praise many different attorneys. In fact, I remember a couple of times where he praised my work — suggesting to me that his praises should generally be taken with a grain of salt. I also don’t believe that this activity warrants him stepping down from his position as chief, but it appears he is going the extra mile to ensure that the court’s integrity is above question.
I should also add that I also believe Ed Reines is a great appellate advocate. (Yes, you may show this to your potential clients.)