David Lat has a great new podcast with Judge Pauline Newman and asks listeners to “evaluate the 96-year-old jurist’s mental acuity for yourself by listening to this podcast.”: https://davidlat.substack.com/p/integrity-an-interview-with-judge-pauline-newman
Lat also includes several video clips for those who would like to see Judge Newman as she speaks: https://davidlat.substack.com/p/6-video-clips-of-judge-pauline-newman
Like Judge Newman, every morning I wake up in a mild panic wondering what incredible composition or product isn’t being used merely because our unfair and burdensome patent system requires applicants to describe the new non-obvious structure of the thing they invented, as opposed to a method step and a functionality.
Think about the trillions of amazing advances that aren’t happening only because we have these onerous requirements. How many children are suffering at this moment because of the 10 million patents that weren’t even filed because there was no chance of monopolizing the diagnosis? The mind reels and humanity weeps.
^^^ your cognitive dissonance has gone apoplectic again (or perhaps more accurately, still.
The usual suspects ==> Apoplectic much?
DL: “ The judicial assistant is the source of much of the negative information about Judge Newman (as you can see from the reports). The career clerk appears to remain loyal to Judge Newman (as reflected in her refusal to answer most questions at her deposition, noted elsewhere in this comment thread).”
Talk about being in the tank for your subject! Isn’t the reality that the judicial assistant provided actual corroborated information (sworn information, if I’m not mistaken)? In contrast, it certainly appears that the “career clerk” stonewalled rather than commit perjury trying to provide an answer that would reflect well on The Greatest Jurist in the History of the Galaxy. Not too difficult to connect the dots here.
I tried to listen to the whole thing. Right off the bat, she somehow gets from “what did you do after law school?” to “patents were invented in Venice.” And she clearly still doesn’t understand how computer networks work (or even that they exist). Yes, she still knows a lot of stuff and can talk coherently. But it’s the holes that make Swiss cheese.
Did David at any point ask why her clerk took the fifth in response to every question at deposition?
Let’s be clear: David is acting as Newman’s press agent here. That’s all anybody needs to know.
Why doesn’t she just submit to the required examination or at 96, take Senior status where she doesn’t have to concern herself with the politics of all this? She can take as much time as she wants but still judge cases. Seems to me a win-win for everybody..
As far as I can tell, Newman has internalized the mythology that she is the last person standing up for True Patent Law which is under relentless attack by her infringer-loving patent-busting colleagues on the bench.
Totally normal behavior and not at all an attitude that a demented narcissist would adopt, especially if she surrounded herself with sycophants eager to please her.
If I recall correctly, Newman took the required examination from her own personal doctor. The chief rejected the results b/c it wasn’t done by the chief’s preferred doctor.
Kinda ironic that that judges are stuck in a classic “umpire shopping” standoff
Same exam? Was it completed or were parts left untouched?
Two exams – and the critical portions were exemplary.
But why let facts get in the way of your feelings, eh Malcolm?
So different exams and only partially completed and the exams were conducted by Newman’s friend, not a third party. Got it. Thanks for clarifying.
Medical examinations also carry ethical duties (as well as these being filed in court).
Your animus is noted.
Why doesn’t Joseph Biden submit to the same exam?
Good question – because the puppet masters would never allow it.
Billy the Independent Thinker pulling his pants down for us again.
What is it with you and that peculiar desire?
*looks at the podcast page, scrolls down*
I can barely imagine being judge moore getting an email from her telling me about how her office worker is stealing her old digital case files over and over lol. Judge moore just sitting there thinking to herself “all that legal scholarship wasn’t worth it for this”.
?
Not sure where you are going with that.
This just seems like dancing around the real issue. If Newman’s job description were having “mental acuity” in a vacuum or having enough “mental acuity” so as to satisfy some unspecified people listening to her on a podcast or watching her speak, then all this might have a point. But I’m pretty sure her actual job description is maintaining a certain level of production with respect to a workload for a Federal Circuit judge.
I doubt that production quotas would be job requirement – and it is a plain awful view to even suggest it.
That is not an assembly line type of job.
You seriously think staying on top of a case load, even for our demigod superiors in the federal appellate judiciary, isn’t a real thing? LOL.
Due to the random nature in which cases are assigned to panels of CAFC judges, it’s entirely possible that a judge go YEARS without ever hearing a case. The current record is 3 years and forty eight days, set by little known Judge William “Lucky” Louisson.
It is LESS that “staying on top of a case load” be a driver for removing from the Bench – as your first comment indicated.
By the way (as I am sure that you know), Newman is NOT the slowest on the Bench, IIRC.
The point of being MORE CORRECT is far more important, and the plain result of NOT being a Lemming and writing far more dissents is important context that must be remembered.
The Supreme Court solved this quite easily by reducing the number of cases granted certiorari. Appellate courts don’t have the same flexibility.
Yet (at least for the CAFC): Rule 36s = flexibility.
“But I’m pretty sure her actual job description is maintaining a certain level of production with respect to a workload for a Federal Circuit judge.”
Oh, really? Where is that in Article III of the Constitution?
I love how this topic brings the SOoper Derp Conshtitooshunel Skollers out of the woodwork. Funny stuff.
Yes, folks, every rule not expressly and specifically set forth approvingly in the Constitution is just plain unconstitutional! It’s just that simple.
You are dissing someone for the very type of thing that YOU have celebrated in an Ends-Justify-the-Means sort of way, Malcolm.
Or does Dobbs in contrast to your celebration of the Supreme Court mucking up eligibility not ring a bell for you?
“SOoper Derp Conshtitooshunel Skollers”
Indeed – as you yet again ploy your
A
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To the extent you are not completely full of b.s., Billy, nobody has a clue what you are talking about. You’re an unfunny, bitter obviously lonely MAGAt dude who can barely write a sentence in English and you are compelled to highlight that fact here ten times a day. Get a life.
I wonder how anon even deals with his morning mirror. So hateful. So full of what he knows will never happen. The election will have the same results. It may not be what the people wanted, but it will be what the people understand is the only way democracy survives.
More projections from you…
Again.
As we know, that is your number one item on your stale short script.
Say “Laa Vee.”
Judge Newman addresses the productivity issue in my interview with her—with statistics. Although she admits she’s in the slowest third of judges, she is not the slowest (and the stats show that).
And although she cleared her backlog months ago, she has not been assigned any new cases. As for why she’s slow, she points out that (1) she’s very thorough—she said she reads very case she cites, not just the Westlaw squib that makes her point—and (2) she writes more dissents.
And Judge Newman’s dissents have had an impact. One law review article noted that in 9 cases where a case in which she dissented went up to the Supreme Court, the Court reversed in 8.
Maybe she’s not the fastest judge on the court. But being right has to count for something.
Thanks David!
Thanks for sharing my podcast with your (large and influential) audience, Dennis!
(And sorry for my typo—that should be “every case she cites,” not “very case she cites.”)
I’ve forgotten, do PTAB judges get any credit (e.g., counts toward their workload or whatever unit of measure is used by the PTO) for writing dissents?
If I recall correctly, PTAB judges are penalized for writing dissents.
They are discouraged from doing so.
More than discouraged PM – their pay is affected.
How does that fit with Arthrex?
How do you discourage a PTAB judge?
Pay (bonuses and otherwise, timing demands, workload, and the like – or do you think that there is no influence in this quasi-judicial, but still very much Executive Branch administrative agency?
By not giving them any credit for doing so.
Please Pardon Potential re(P)eat…
Your comment is awaiting moderation.
January 25, 2024 at 10:18 am
+1
As I recall, the tone of the message of “no credit” was distinctly “Don’t rock the boat.”
There are BOTH monetary and psychological pressures brought to bear.
Who are some of the judges that have not been influenced by this PTO policy of chilling dissent and write dissents nevertheless? I don’t know how to search for that.
U,D
That is not something that will be directly searchable.
As I recall, the other blog of IPWatchdog has covered some explicit instances.
I appreciate Lat’s engagement. The interview was well done, and it’s interesting to hear the perspective of someone who knows the judiciary well but doesn’t live in the strange world of patent law.
To respond to this comment- what stats prove Judge Newman’s point about productivity? I listened to the whole interview, and only recall her saying that at one point, four of the five then-longest-outstanding opinion assignments belonged to other judges. That’s interesting, but it only concerns five cases. Did she say anything else?
The data in the Federal Circuit’s Sept. 20 order at pp. 38-39 seem to me to show that Judge Newman is by far the slowest, and that her dissent rate doesn’t explain the gap with the rest of the court. link to cafc.uscourts.gov
“One law review article noted that in 9 cases where a case in which she dissented went up to the Supreme Court, the Court reversed in 8.” The Federal Circuit generally can’t make circuit splits, so when the Supreme Court grants cert from that court, it’s usually to reverse. It’s still to Judge Newman’s credit that she’s written at least 8 dissents that the Supreme Court seemingly agreed with, but if you’re only counting cases where cert was granted, 8/9 doesn’t mean that she’s “right” more often than anyone else.
These are just 2 quibbles with numbers. None of this means she should or shouldn’t retire, or has anything to do with the procedural fairness questions Lat has highlighted. This whole debacle is sad and uncomfortable.
“ One law review article noted that in 9 cases where a case in which she dissented went up to the Supreme Court, the Court reversed in 8.”
Which 9 cases were these and are they inclusive of all the cases in which she dissented and for which cert was petitioned? What about CAFC en banc decisions?
Here’s the article:
link to repository.law.uic.edu
Note that it’s from 2017, so I don’t know the updated statistics (although I don’t think many cases of hers have gone up to SCOTUS in recent years).
Setting aside the underlying issue of Judge Newman’s fitness, I’d be interested in hearing a defense of the Federal Circuit’s refusal to transfer this case to another circuit.
As noted in one of Judge Newman’s briefs, “since the publication of the Implementation of the Judicial Conduct and Disability Act of 1980, every single complaint of misconduct against a circuit judge that was not summarily dismissed has been transferred to another circuit’s judicial council for investigation…. As Professor Arthur Hellman noted, ‘over the last few years, chief judges have consistently followed the practice of requesting a transfer when serious allegations have been raised about a judge of the court of appeals.'”
See pages 74-75 of this brief:
link to cafc.uscourts.gov
“… to avoid even the appearance of impropriety.. ”
But that would likely lead to an undesired result.
Setting aside the underlying issue of Judge Newman’s fitness, I’d be interested in hearing a defense of the Federal Circuit’s refusal to transfer this case to another circuit.
The Federal Circuit discusses this at pp. 40-47 of this order.
link to cafc.uscourts.gov
The court distinguishes past transfers as involving misconduct rather than disability, and cites Judge Newman’s ongoing “troubling interactions with staff” (which are described at pp. 19-33) as a reason to keep the investigation at the Federal Circuit. I don’t entirely follow the reasoning for denying transfer and am not sure if it’s persuasive.
I wish the interview had pressed Judge Newman on her career clerk’s antics. That part’s really weird and seems to be part of what got the investigation started.
Sorry, just to clarify—do you mean her career clerk, or her judicial assistant?
The judicial assistant is the source of much of the negative information about Judge Newman (as you can see from the reports). The career clerk appears to remain loyal to Judge Newman (as reflected in her refusal to answer most questions at her deposition, noted elsewhere in this comment thread).
I’d actually like to interview the former JA for this longer story I’m working on, since he clearly has relevant information. If anyone knows him—or if he’s maybe even reading these comments—my email address is davidlat@substack.com.
And if anyone else has firsthand knowledge about the events at issue and would be willing to chat, whether on the record or off, please reach out to me. I’m interested in hearing all sides, and I’ll talk to anyone with relevant factual information.
I’ve already reached out to the Federal Circuit’s public information office to see if any members of the Special Committee would be willing to speak. Given the pending proceedings, they might not—but I have definitely given them the opportunity.
Thanks!
Did you ask her about either?
I mean the career clerk–whose treatment of the judicial assistant appears to have led (at least in part) to the investigation.
[As noted in one of Judge Newman’s briefs, “since the publication of the Implementation of the Judicial Conduct and Disability Act of 1980, every single complaint of misconduct against a circuit judge that was not summarily dismissed has been transferred to another circuit’s judicial council for investigation…. ]
Which is a red herring because she hasn’t been accused of misconduct.
“because she hasn’t been accused of misconduct.”
I call B$ on that – that’s akin to ‘resisting arrest’ for no reason TO BE arrested (but worse, given the protections that Judges have).
So soon you forget the Trumped up charges ‘conveniently’ not pursued?
“ being right has to count for something.”
Being spectacularly wrong should also count for something and Newman has certainly been that plenty of times.
The cult around this mediocre judge is really silly but we all know why it exists.
As a friendly reminder you’re the one that thinks he about to finna drawl this. Not newman, to her credit she knows her limits.
link to youtube.com
The (obviously unintended) collision of self-irony of this coming from Malcolm:
“Being spectacularly wrong should also count for something”
Amen. Must be annoying for the other judges to know they’re wrong when they don’t vote with Judge Newman.
Comedy gold. Doesn’t get better. 🙏🏾🙏🏾🙏🏾
Mooney, I’m glad that you have joined those of us who have been laughing to at you for years.
+1
(although I agree with your sentiment, were that to be true, Malcolm’s ardent lack of acknowledging his behavior removes that possibility)
+1
That is an impressive result – 89% success.
+1 David
Judge Newman is a National Treasure.
+1. She’s sharp as a tack.
While it’s apparently O.K. for America to soon be stuck with either President Dementia . . . or President Criminal.
What could go wrong?
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