State of Innovation

Makeup of the CAFC

I have been wondering about the number judges on the Court of Appeal for the Federal Circuit who were practicing patent attorneys.  I was surprised that I could not easily find this information.  Here is what I found (I believe this information is accurate, but if I am mistaken please let me know).  According the CAFC’s website there are 15 judges and five of them are patent attorneys.  Six of the judges have technical backgrounds.  I think this is pitiful.  The CAFC has jurisdiction over most patent appeals.  According to the CAFC website 39% of its cases relate to intellectual property – 36% of which are patent cases.  It might be argued that since only 36% of their cases are related to patents, then it makes sense that only 36% of the judges should be patent attorneys.  I would argue this is incorrect.  First of all, we have plenty of federal judges without technical backgrounds.  It is not necessary to populate the CAFC with judges that do not have technical backgrounds to provide balance to the makeup of our federal judges.  In fact, the exact opposite is true.  Second, it is easy for a judge with a technical background to pick up and new area of law, but it is almost impossible for a judge without a technical background to understand the technical concepts associated with genetic engineering, XML, spread spectrum, organic chemistry or numerous other areas of technology.  We perpetuate a myth that the facts are decided at the trial level, so the judges at the appeal level do not have to understand the underlying technology to reach a correct decision.  However the judges on the Supreme Court prove over and over again that their ignorance of basic technology and science results is bad decisions.  See Bilski: The Good, the Bad, and the Ugly and KSR: Supreme Ignorance by Supreme Court .  As a result, I believe that we need significantly more patent attorneys as judges on the CAFC.

Judge Patent Attorney Technical Background
Rader No No
Friedman No No
Newman Yes Yes – Ph.D
Archer No No
Mayer No No
Plager No No
Lorie Yes Yes – Ph.D
Clevenger No No
Schall No No
Bryson No No
Gayarasa Yes Yes – BSEE Patent Examiner
Linn Yes Yes – BEE
Dyk No No
Prost No Yes – BS
Moore Yes Yes – MSEE