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18 thoughts on “Timothy B. Dyk: The Education of a Federal Judge”

  2. 6

    He needs to change the title to be somewhat akin to Lauryn Hill’s hit album of a few years ago.

  3. 5

    He was on the panel for an ex parte appeal for me. The examiner had made a clear factual error, which the panel noted. He asked me what I wanted the panel to do. I said, reverse the Board. He said he was not comfortable with the technology so he preferred to remand.

  4. 4

    This is the judge who wrote (WARNING/DISCLAIMER: Paraphrasing here), “I don’t care what the claims say, I’m going to look at the application and figure out what the invention is.”

    This guy can’t retire fast enough.

  5. 3

    Meh. Sounds like something The Onion Press would put out.

    . . . and shouldn’t the subhead read:

    “How I Helped Put an End to Patent Eligibility in America”

  6. 2

    It’s sort of ironic that, save one (Plager), Dyk’s older than all the judges on senior status, without himself being on senior status. And he’s not even second oldest in that category; that’d be Lourie, while Newman holds the top spot.

    I wonder if putting out this autobiography signals he plans to go senior or step down in due course.

    1. 2.1

      Any act that would allow Biden to appoint a younger Federal judge to the CAFC would be wise and appreciated. This goes for all the ultra-ancient judges presently occupying seats on the court. Do the right thing while the window is open. See, e.g., Justice Breyer who learned his lesson from his arrogant departed colleague, Ginsberg.

      Term limits, of course, or other limiting measures to encourage judges and Justices to step off after a couple decades would make too much sense, of course.

      1. 2.1.1

        Six judges out of 19 are currently on senior status. Of the remaining 13 judges, seven have a technological background. Of those seven, five seem to have some experience as patent attorneys, including in-house counsel. Two of those are Newmann and Lourie.

        I think it is important to have someone with patent counsel experience on the bench and panel, and not just litigation.

        2. 2.1.1.2

          By statute, the Federal Circuit has no more than 12 judges in active service. (Chief Judge Moore, Judges Newman, Lourie, Dyk, Prost, Reyna, Taranto, Chen, Hughes, Stoll, Cunningham, Stark.) The rest are senior. (Judges Mayer, Plager, Clevenger, Schall, Bryson, Linn, Wallach.)

          In addition to patent counsel experience, I think it would also be important to have judges with backgrounds in other areas of the court’s jurisdiction (international trade, government contracts, employment law, takings, tax, veterans’ law, etc.)

          1. 2.1.1.2.1

            Thanks for the correction.

            As the Federal Circuit is THE appellate court for patent appeals, I disagree with diluting their expertise with more generalists or people specializing in other areas. I think that is how we got where we are.

            1. 2.1.1.2.1.1

              But, look, the same court also has exclusive appellate jurisdiction over international trade disputes, and over government employment disputes, and over Tucker Act cases, and over veterans’ benefit disputes. If “exclusive appellate jurisdiction” means “only pick lawyers related to category X,” then the very charter of the CAFC has set one up for frustration.

              Incidentally, I cannot agree that a lack of patent prosecutors on the CAFC is the cause of our present troubles. At the time that Giles Rich joined the CCPA, he was the first and only patent lawyer on that court. Nevertheless, the patent jurisprudence of that era was excellent. The real source of the rot lies with the SCOTUS, and no amount of changes to the CAFC’s composition will really fix the problem unless and until the SCOTUS problem is solved (ideally by removing the CAFC from certiorari jurisdiction to the SCOTUS).

              1. 2.1.1.2.1.1.1

                I understand that the CCPA sat en banc, so there would always be at least one patent lawyer hearing the appeal. Not necessarily the case with CAFC panels. And Rich was involved in drafting the 1952 Patent Act.

                The CCPA was also less deferential to the USPTO.

                Your point about other duties is well taken. But, most of those are far less complex than patent cases. So, I would still contend that there should be enough patent practitioners on the court to attempt to have one per panel.

      2. 2.1.2

        Trusting Biden’s choice — on anything — reveals how little weight your views should be given, Malcolm.

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