President Biden’s nominee to replace Judge Kathleen O’Malley has been confirmed by the U.S. Senate. Congratulations Judge Leonard Stark, and welcome to the Court of Appeals for the Federal Circuit. O’Malley’s announced retirement date is March 11, 2022. Assuming that has not changed, I expect that Judge Stark will be sworn in that same day or shortly after. Judge Stark has handled more than 2,000 patent cases, including dozens of trials during his time as a Federal District Court judge in Delaware.
OT, but interesting discussion of Chevron, which is applicable to say the treatment of 101 by the USPTO.
link to youtube.com
“Lives and dies by Chevron, but that is the law of the land”….
Notwithstanding any stances on Chevron, I’ve seen other clips of this nominee, and there is no way in the world this person should be approved.
The USPTO does not get Chevron deference on §101. Merck & Co. v. Kessler, 80 F.3d 1543, 1549 (Fed. Cir. 1996) (“Commissioners Kessler and Lehman contend that ‘under… Chevron…, PTO’s Final Determination is entitled to controlling weight.’ The contention is unavailing… [O]nly statutory interpretations by agencies WITH RULEMAKING POWERS deserve substantial deference… [T]he broadest of the PTO’s rulemaking powers… does NOT grant the Commissioner the authority to issue substantive rules”).
Yes I think that is basically right Greg.
Sure, but the person being vetted was for the FTC, not the USPTO.
Each Administrative Agency has – through its charter – its own level of a number of factors: judicial (or semi-judicial) independence, and rulemaking powers (which – to remain Constitutional – have a number of factors themselves).
I do believe that the FTC has broader power in the rules making power arena, but the particulars are outside of my baily wick.
How come we can never get any hard science or engineering types on the CAFC since the CAFC handles all the patent cases? Stark has a BS in history and a MS in political science. At least Stark is a Biden appointee who will not enforce memo 618, executive order 13 or executive order 21. Can we please get another dozen Judge Newman who have both hard science and a patent litigation experience. I don’t agree with Newman all the time but I take her opinions very seriously even when I don’t agree with them.
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Can we please get another dozen Judge Newman who have both hard science and a patent litigation experience.
From your lips to God’s own ears.
Well at least you have a judge with experience at a court of record. That practical experience should help decide some of the sticker issues going before the CAFC. For example, what needs to be in the record, for the cafc to flip on obviousness or a Markman ruling?
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