State of Innovation

Patents and Innovation Economics

Makeup of the CAFC: Update 4/25/11

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 16 judges and five of them are patent attorneys.  Six of the judges have technical backgrounds.  I think this is pitiful.  However, all six of the judges on senior status do not have technical backgrounds and are not patent attorneys.  Thus, among the active judges five of 10 are patent attorneys and six of ten have technical backgrounds.  It appears that the court is moving in the right direction.  The newest judge is Kathleen M. O’Malley who does not have a technical background and is not a patent attorney.  The CAFC website plays up her experience with patent cases, but I am skeptical that this makes up for the right technical background or real experience in patent prosecution for the reasons stated below.

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% (50% of active) 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
Gajarasa Yes Yes – BSEE Patent Examiner
Linn Yes Yes – BEE
Dyk No No
Prost No Yes – BS
Moore Yes Yes – MSEE
O’Malley No No

* Senior status.

The following additional information was provided by stepback.

PAULINE NEWMAN, Circuit Judge: … She served as patent attorney and house counsel of FMC Corp. from 1954 to 1969 and as research scientist, American Cyanamid Co. from 1951 to 1954. Judge Newman received a B.A. from VassarCollegein 1947, an M.A. from ColumbiaUniversityin 1948, a Ph.D. from YaleUniversityin 1952 and an LL.B. from New York University School of Law in 1958.  From  Not surprisingly I have often believed Judge Newman is the most intelligent judge on the CAFC.

KIMBERLY A. MOORE, Circuit Judge: … was an Associate at Kirkland & Ellis from 1994 to 1995. From 1988 to 1992, Judge Moore was employed in electrical engineering with theNavalSurfaceWarfareCenter. Judge Moore received her B.S.E.E. in 1990, M.S. in 1991, both from the Massachusetts Institute of Technology, and her J.D. (cum laude) from theGeorgetownUniversityLawCenterin 1994.

RICHARD LINN, Circuit Judge: … was a Partner and Practice Group Leader at theWashington,DClaw firm of Foley and Lardner from 1997 to 1999. He was a Partner and head of the intellectual property department at Marks and Murase, L.L.P. from 1977 to 1997. Judge Linn served as Patent Advisor, United States Naval Air Systems Command from 1971 to 1972, was a Patent Agent at the United States Naval Research Laboratory from 1968 to 1969, and served as a Patent Examiner at the United States Patent Office from 1965 to 1968 … He received a B.E.E. from Rensselaer Polytechnic Institute in 1965, and a J.D. from Georgetown University Law Center in 1969.

ARTHUR J. GAJARSA, Circuit Judge: … was a partner in theWashington,DClaw firm of Joseph, Gajarsa, McDermott and Reiner, P.C. from 1987 to 1997. Since 2003, Judge Gajarsa has been an Adjunct Professor at theGeorgetownUniversityLawCenter. From 1980 to 1987, he was a Partner in the law firm of Wender, Murase and White. From 1978 to 1980 he was a Partner in the law firm of Gajarsa, Liss, and Conroy and from 1971 to 1972 … received a B.S.E.E. from Rensselaer Polytechnic Institute in 1962, an M.A. from Catholic University of America in 1968, and a J.D. fromGeorgetownUniversityLawCenterin 1967.

April 25, 2011 - Posted by dbhalling | Patents, -Law | , , , , , , ,

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  1. Mr. Halling:

    As a pro se Inventor (2002-2010 – 56 patents) & admirer of you perspective – please let me know what you suggest to defeat “America Invents Act”?

    Scott Moskowitz

    Comment by Scott Moskowitz | April 25, 2011 | Reply

    • Scott:

      First and even before that, we need to call the Act by its true name:
      “The America Invents (Not) Act”

      Comment by step back | April 26, 2011 | Reply

    • Mr. Moskowitz,

      Thank you for your kind comments – 56 patents that is a very impressive accomplishment. I do not pretend to have any real skills in the political arena. However here are my thoughts:

      Long Term:

      Patents are property rights: I think that showing that patents are property rights is the
      single most important argument that has to be won. It means that you have to develop a logically consistent basis for property rights. Property rights are the result of creation and man’s main tool of creation is his mind.

      Patents are key to economic growth: More people are recognizing that it is no coincidence that the Industrial Revolution (escape from Malthusian Trap) coincides with the recognition of property rights in inventions (patents). Invention is the only way to increase per capita income.

      Short Term

      One World Government (Pure politics): We state that “harmonization” is a code word for the one world government people. This plays to the fears of both the left and the right.

      Meaningless grace period: The present legislation kills the one year grace period.

      Jobs: All jobs are created by startups (Kauffman Study), startups and individual inventors create most of the emerging new technologies (SBA study), and it is startups built on these emerging technologies that create most of these new jobs and create the high quality, high paying jobs. See the book Great Again.

      Cynical aside: I am afraid that congressmen find the “America Invents Act” a cheap vote. They receive a modest to large campaign contribution for a vote that very few people in the US are focused on. And most are too stupid to understand the damage to our economy this will cause.

      Comment by dbhalling | April 26, 2011 | Reply

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