Judge Newman

Gene Quinn is reporting that Chief Judge Moore has moved forward with proceedings to remove Judge Newman from the bench — filing a complaint under the Judicial Conduct and Disability Act.  The stage of the action is not clear from Quinn’s reporting, but the usual process allows for any person to file a complaint that is then reviewed by the Chief Judge of the circuit.  If the Chief Judge sees merit in the complaint then she forms a special committee of judges to make a further determination.

Judge Pauline Newman was appointed to the Federal Circuit by President Ronald Reagan in 1984 – 39 years ago. At the time, she was already 50+ years old with a successful career as a research scientist, patent attorney, and in-house counsel (chief of IP).  She is now 95 years old.   If I have done my counting correctly, Newman has authored over 2,800 majority opinions during her time on the bench; as well as 500 dissents.

Chief Judge Moore Said to Be Petitioning to Oust Judge Newman from Federal Circuit


80 thoughts on “Judge Newman

  1. 11

    Shouldn’t Judge Dyk go senior? He’s 86. Pretty soon he’s going to be finding patents valid and infringed and business methods eligible.

    1. 11.1

      Yeah, but Lourie needs to do it first (go senior) given that he’s 88! Compared to him, Dyk’s still a tyke!

    2. 11.2

      3 of the 12 active Federal Circuit judges are 86 years old or older. Prost and Reyna are in their 70s. For better or worse, the Federal Circuit is dominated by judges who came of age when cutting-edge technology looked very, very different than it does today.

      1. 11.2.1

        Quick back of the envelope calculation suggests CAFC active judges are the oldest by far among all the Circuits. Only CA7 even begins to come close, just because Rovner is 84.

      2. 11.2.2

        On the other hand, the CAFC was a lot younger when Mayo v Prometheus was percolating up, it was the most basic “technology” ever, and they still managed to totally blow it.

        The “tech” is not the issue. The issue is that lifetime appointments are ridiculous, period.

        But let’s see how this nimrod dominionist judge from Texas and his dominionist buddies on the 5th Circuit handle what’s coming at them. Maybe we’ll see some real self-reflection? Haha. The fundies have a hard time with that.


          Close to a supermajority of states and the District have mandatory retirement for judges. The number gets even bigger if you include the ones that don’t technically mandate it, but impose significant penalties for retiring past a certain age. It also includes nearly all the states on both coasts, cuts across both “red” and “blue” states, and includes some of the most populous states like New York, Florida, and Texas.

          link to ballotpedia.org

          You can’t really argue with this overwhelming support for judicial retirement ages as a positive thing.

          I also note that Vermont has the most generous regime, with a ceiling of 90. But even there, Newman would still be 5 years past her sell-by date.


              She’s a U.S. federal appellate judge. That’s one of the most privileged existences on the planet—including post-retirement. And her stubborn insistence on overstaying her welcome is causing hardships to her colleagues and the litigants in cases where she’s a panelist, plus it’s generally detrimental to sound judicial administration and the public interest. But I’m the meanie here? Yeah, no.


                Harumph. I’d take three Newmans on my cases every time.

                Each and every time.

                Just like every other independent inventor would.

                1. Exactly I’m pretty sure there are a whole lot of people that would take newman on their panel each and every single time if they could, and not just ind. inventors.


                “is causing hardships to her colleagues and the litigants in cases where she’s a panelist”

                I have yet to hear about that. If her taking a bit longer to drop a decision is a great “hardship” maybe they should consider not appealing. If there actually are some hardships imposed that I’m not hearing about then fine.

  2. 10

    Regardless of whether Judge Newman resigns of her own accord, is forced out by her colleagues, or dies in office, it will be a sad day when she leaves the bench. She is a star of the federal bench. We may never see her like again. “Give her of the fruit of her hands, and let her works praise her in the gates” (Prov. 31).

    1. 10.3

      I concur with your opinion that Judge Newman is a star of the bench. I may disagree occasionally with Newman’s opinions, but I try to carefully read her dissents out of respect for here vast patent practitioners experience and sharp intellect. I am not sure if it is a political move since both Moore and Newman are Republican appointees. My concern for Judge Newman is the potential violation of labor law involving age discrimination by Judge Moore. Even if there is a true disability for Judge Newman, hopefully some “accommodation” can be made in compliance with the American’s with Disabilities Act or the CAFC faces liability under the ADA. I think Judge Moore just kicked a hornets nest of legal issues of discrimination.

      1. 10.3.1

        If it’s age discrimination you’re thinking of the ADEA right, not ADA.

        But, of course, the E in ADEA is for employment, and Art. III judges aren’t employees under any reasonable definition of that term.

        Moreover, judicial disability proceedings are expressly provided for in a federal statute. So, they’re clearly legal on their face, regardless of whatever the ADEA says about age discrimination generally.

        Bottom line, I don’t think CJ Moore has any reason to fear hornets on this one.


            I concur hornets will fly. You can bet a bunch of lawyers are going to get litigious especially when those lawyers are high powered and influential. It is in our nature.

            “For any particular thing, ask What is it in itself? What is its nature?” — Marcus Aurelius, Meditations (c. 175); — Hannibal Lecter, The Silence of the Lambs (1991).

            link to youtu.be


          I do not think so — SJM, while infrequent, has been an independent poster going back well before Greg started posting here.


          Thank you for the correction and expansion on the law. Labor law is not my area of practice but I at least spotted the issue.

  3. 9

    There has been hushed up gossip for the past decade that Judge Newman has no energy in chambers and is no longer physically capable to do perform her duties as a civil servant. Her clerks protect her very well and with great loyalty, but the move to push her to retirement has been informal for a long time. The respect Pauline Newman has earned and deserves is the only reason it has taken this long for such public action to remove her. No one who knows the judges of the Federal Circuit thinks that this move is taken lightly or with any joy by Chief Judge Moore – the collegiality of this bench is unmatched. This action is unfortunately overdue for the long-term health of the CAFC.

    1. 9.1

      If by “the collegiality of this bench is unmatched” you mean;

      “Nest of vipers” (as a Washington insider shared with me not so long ago),

      Then your 1984isms are in high gear.

      That you want to claim “overdue for long-term health,” you need to do more than merely mouth the words and provide evidence as to why such is the case.

      Even in an aged state, she runs circles around most all others in that bench.

      1. 9.1.1

        “Even in an aged state, she runs circles around most all others in that bench.”

        This cheerleading schtick was tired and lame 15 years ago. Give it a rest.



          By the way “cheering” for good law is something ALL patent attorneys should do.


            Newman’s fanboys are the result of her dissenting more often than other judges when the panel ruled against the patentee/applicant. There is nothing special about her legal reasoning and in many instances where she dissented she was plainly off the reservation and we can be thankful she didn’t get another vote from the panel.



              Ah yes, the return of the mindless [shrugs]

              Other than you being entirely wrong, you were almost within a hint of a shadow of a speck of a possibility of being right.

              But alas, you being you is what you do.

    2. 9.2

      “The respect Pauline Newman has earned and deserves is the only reason it has taken this long for such public action to remove her. No one who knows the judges of the Federal Circuit thinks that this move is taken lightly or with any joy by Chief Judge Moore – the collegiality of this bench is unmatched.”

      That’s what I was thinking as well. People on the outside often don’t know that this little clique will often be down having lunch or breakfast together in their secrit courthouse diner or elsewhere. They all bros, I’m surprised Moore couldn’t get her to go on and retire and put her efforts somewhere in the philanthropic sector.

      1. 9.2.1

        That “collegiality”
        Is unmitigated horse pucky.

        “Nest of vipers” — and that was being generous.


          That’s not what they themselves report. If things were that bad then congress should intervene, as you don’t want a bunch of judicial in-fighting.


            That’s not what they themselves report.

            I am sorry – that is NOT a valid counter point.

            That’s like hearing something on the internet: link to youtube.com

            Go ALL the way back to Michal and Radar — things have only gotten worse.

  4. 8

    The important last line of Quinn’s reporting, omitted here: “Numerous staff and colleagues with knowledge of the complaint filed against Newman have contacted IPWatchdog to both confirm the filing of the complaint and to vehemently oppose the allegations being made about Judge Newman’s competence.”

    1. 8.1

      That was NOT omitted and it is important because “vehementlty opposing” a call for a 95 (?!?) year old Federal judge to retire after 40 years is something one would do only if they thought her replacement was going to be someone not ideologically aligned with you. Given that the views of Quinn and his fellow rightwing glibertarian zombies are universally loathes by normal people, we can be sure that’s the source of most of this “vehement opposition” (other than the clerks who will presumably need to move on, as if that never happens to people with 95 year old bosses).

      1. 8.1.2


        i can think of at least one other reason: the woman is still the sharpest judge on the court and shouldn’t be forced off of it.

        malcolm, you can be described in the words of the great bugs bunny: what a maroon!

      2. 8.1.3

        For Malcolm, from the other side of the blog:

        One, I saw Judge Newman (with Judge Lourie and former Judge O’Malley) speak at at the USPTO three weeks ago. (I was there speaking on patent ethics.) Judge Newman was eloquent, coherent, cogent, and spoke passionately about various topics, including section 101 (which requires a bit of mental agility, I would say). As others have pointed out, Judge Newman has, for a very long time, often taken more time in getting her opinions out than other judges, but I have seen nothing in those opinions that show incompetency, and if that delay were the basis that was a well known fact decades ago.

        Second, this is the second time Chief Judge Moore has engaged in what is unprecedented conduct that has raised concerns about the integrity of the Federal Circuit.

        But you be you Malcolm.

    1. 7.1

      Right, because when you think “Western civilization” the first thing that comes to mind is 95 year old woman judges that won’t retire.

      Seriously, though, thanks for the laughs. Reading the unhinged lamentations of Whitey McDestiny and drinking from the endless river of sweet tech bro tears is one of the reasons I love this place.


          Put on your big boy pants and try to guess what “Gene” is talking about when be bemoans the decline of (lol) “western civilization”. You think he’s talking about Africa? China? Native American societies?

          It’s okay, snowflake. You’ll dry up soon enough and blow away.


            LOL – your “big boy pants” misses.

            Speak plainly here son – let your own R A C Y I S M shine forth.

    2. 7.2

      Comes down to reality. Is Newman competent and this is a political move by Moore? If yes, then Moore should be impeached. Is Newman competent but Moore reasonable felt she wasn’t. Then nothing should be done.

      If Newman is incompetent, if yes, then she should retire.

      What are the facts? We don’t know.

      I guess the terrifying outcome is that this is a political move by Moore and Newman is removed even though she is competent. Then this is really bad.

      1. 7.2.1

        Given what we do know, the idea that this is some icy cold power play by Judge Moore strikes me as ridiculous.

        But it’s obvious why a certain contingent of fanboys is getting worked up about it. If Newman is replaced during Biden’s term(s) then there is zero chance she’ll be replaced by the sort of patent-huffing reactionary “lib-triggering” stooge that the worst attorneys ever would love to see on the CAFC.




          Same old Malcolm.

          Beyond sad.

          (but Malcolm is not gaslighting anyone when he proclaims that he is not anti-patent )

      2. 7.2.2

        “Should,” yes. But that just exposes the weakness of the impeachment threat…if your “high crime” is something the ruling coalition wants done, then you’re immune. Regardless of the actual laws


          something the ruling coalition wants

          Which is exactly why people who complain about ‘consp1racy the0ries’ should stop feeding them.

  5. 6

    Lifetime appointment is a terrible idea in the first place.

    My guess is that the situation is even worse than it appears.

  6. 5

    Although the issue with Judge Newman is very interesting, I’m surprised there was no article regarding the Sequoia v. Dell decision that came out yesterday. It isn’t too often we get a precedential opinion regarding 101 in which the rejection was reversed.

    Some interesting things about the decision is that the rejection involved computer program product claims. Also, Andrei Iancu argued for Sequoia.

    1. 5.1

      Not that interesting, really. I’m not sure what the precedent is other than “medium” does not necessarily include “transient” (and therefore ineligible) mediums. But I suspect there will be a post forthcoming.

      1. 5.1.1

        The whole line of
        vis a vis “transient” is an assault on thinking people.

        Look up on a clear night sky and see “transient” that has been around far longer than the entire human species.

        In re Nuitjen needs be abrogated — on the physics of reality alone.


          “ Look up on a clear night sky and see “transient” that has been around far longer than the entire human species.”

          Whoa. Heavy, dude.


            Did you have cogent reply that you wanted to share?

            Perhaps you would like to state that reality is somehow different than what I portray?

            Speak up son – leastwise, do so intelligently.

  7. 3

    First, lifetime appointments are an incredibly stupid idea.

    Second, regardless of the inane cheerleading of her silly online fanboys, Newman has not been the sharpest stick in the room for a long time.

    Third, as one gets into old age each year makes a LOT more difference (statistically, anyway). The changes between 85 and 95 are not like those between, say, 25 and 35, or brethren 45 and 55.

    Fourth, I’m sure Judge Moore knows what she is doing here. At least, she knows infinitely more about the situation than some wingnert who has been hitting the patent crack pipe like a demon for two decades.

    Fifth, hopfefully the fantastically corrupt Clarence Coathanger gets his comeuppance next.

    1. 2.1

      Any level to which Judge Newman may have fallen off would be a high bar to reach for most all of the other judges of the Federal Circuit.

      Perhaps this may reflect a certain leadership position within that Circuit against what the Chief Judge wants (vis a vis the O’Malley retirement snafu minority-became-majority case).

      1. 2.1.2

        “Any level to which Judge Newman may have fallen off would be a high bar to reach for most all of the other judges of the Federal Circuit.”


      2. 2.1.3

        I’m not familiar with the O’Malley retirement snafu. Please explain in more detail.


          I believe he’s referring not to a snafu with Judge O’Malley’s retirement per se, but rather to the fact that she was in the majority on a 2-1 decision with Moore being the dissenter, and after O’Malley retired, a third judge was added by Moore to the panel to replace O’Malley, the panel granted rehearing, and reversed itself 2-1. I don’t recall which case that was but it has been discussed on patentlyo and elsewhere, and I believe is now the subject of a cert petition that questions the procedural propriety of what was done.


            Indeed the cert petition is fully briefed and will first be considered at conference tomorrow.

    1. 1.1

      Good question. I was wondering too.

      Rule 25 (see link to Rules below) governs disqualification. 25(a) states: “If a complaint is filed by a judge, that judge is disqualified from participating in any consideration of the complaint [with some exceptions].” However, 25(a) further states: “A chief judge who has identified a complaint … is not automatically disqualified from considering the complaint.” (my emphasis) Pursuant to Rule 5, “identifying” a complaint is a special procedure available only to the chief judge and is distinct from actually filing a formal complaint.

      Given the above, disqualification will turn on whether CJ Moore actually filed a formal complaint, or whether she availed herself of the Rule 5 complaint “identification” procedure. If the latter, then strictly speaking, she is “not automatically disqualified.” However, Rule 25(a) also provides: “Any judge is disqualified from participating in any proceeding under these Rules if the judge concludes that circumstances warrant disqualification.” CJ Moore might very well conclude that her disqualification is warranted under the present circumstances. But otherwise it seems like she could still participate.

      If the former—i.e., CJ Moore actually filed a formal complaint—then yes she is clearly disqualified on that basis alone. The Quinn post states that she “filed” a complaint. However, I’m not sure if that term is being used with its formal meaning such that it would be a trigger for disqualification under Rule 25(a), or if it’s being used more loosely in a way that might cover simply “identifying” a complaint. We don’t really have enough detail currently to know one way or the other. That said, because chief judges have the alternative option of “identifying” a complaint without necessarily being disqualified, that seems fairly attractive compared to going the formal route that automatically triggers disqualification. So we can speculate that CJ Moore opted for “identification”, but again, we still don’t know for sure.

      Anyway, if CJ Moore is ultimately disqualified for whatever reason, Rule 25(f) provides that “the most-senior active circuit judge not disqualified” steps in as a replacement. Here, ironically, Newman would be poised to substitute—except, of course, that as the “subject judge” targeted by the complaint, she’s also disqualified per 25(b). So, next in line after her is Lourie I believe. At 88, Lourie’s not exactly a spring chicken either, except, perhaps, when compared to Newman.

      link to uscourts.gov

      (A further irony—Pauline Newman is oldest active-status federal judge in U.S. history. One last irony—just today the NYT published an op-ed titled How 90 Became the New 60.)

      1. 1.1.1

        Is competency an issue of fact or an issue of law? Is it an evidentiary hearing?


          The relevant inquiry here is “disability,” which is defined in Rule 4(c) of the rules linked above as: “a temporary or permanent impairment, physical or mental, rendering a judge unable to discharge the duties of the particular judicial office. Examples of disability include substance abuse, the inability to stay awake during court proceedings, or impairment of cognitive abilities that renders the judge unable to function effectively.”

          Presumably the Complaint would be based on that last clause, impairment of cognitive abilities (and not having seen the Complaint, if it even exists, I take no position on whether or not it has any merit).

          An evidentiary hearing is not strictly required but the special committee almost certainly would hold one in which testimony could be taken under oath. The proceedings are less formal than a court hearing, and the rules of evidence do not apply. These types of hearings are somewhat rare in the case of judicial disability, with most judges agreeing to retire or step aside to avoid these proceedings.


              You can see a list of prior judicial council orders here:

              link to uscourts.gov

              Not sure if that’s a complete list or not, but as you can see, these proceedings are rare. The overwhelming majority involve alleged misconduct and not alleged disability on the part of the judge. Judicial disability complaints rarely the distance sufficient to generate a public record, for precisely the reasons I mentioned.


                hmm – sorry but “precisely for” does NOT support — and is a logical fallacy as the LACK of support is exactly the point of my rejoinder.

                If you lack the record, you cannot be making the assertions you are making.

    2. 1.2

      Pretty sure that judge Moore was probably just unofficially “elected” to be the one out of the group to file the “complaint” as she’s the one that would be reviewing it anyway. Unless Moore sees doing this as more or less part of her role as chief judge overseeing the court. Otherwise I would think it is odd that it is her specifically that filed.

Comments are closed.