Decisions by the Court as an Institution; or by the Judge as a Human?

by Dennis Crouch

In Novartis Pharm. Corp. v. Accord Healthcare, Inc., 38 F.4th 1013 (Fed. Cir. 2022), the Federal Circuit made a procedurally embarrassing rehearing decision.  In its original decision the appellate court sided with the patentee on validity–affirming that the claims satisfied the written description requirement. Novartis Pharm. Corp. v. Accord Healthcare, Inc., 21 F.4th 1362 (Fed. Cir. 2022).  That original opinion had been authored by Judge O’Malley with Chief Judge Moore in dissent.  When O’Malley retired, the court silently replaced O’Malley with Judge Hughes and issued a new opinion on rehearing flipping the outcome.  In the new decision, Judge Moore’s dissent became the majority (joined by Judge Hughes) with Judge Linn moving to the dissent.

Now, Novartis is seeking a rehearing — arguing (1) that the original decision was correct; and (2) that the judicial replacement to alter the outcome was improper.  I previously wrote about the petition by Novartis and the amicus briefs in support.  The defendant Accord has now filed its responsive brief in opposition.

The brief makes three arguments to explain why it was proper to appoint a new judge on panel rehearing in a way that flipped the outcome.

1. First, the dissent (Judge Linn) “did not [publicly] raise any objection to the procedure employed.” Note here that Judge Linn has senior status and now generally an outsider to the courts internal procedure.
2. Second, Courts largely have authority to make their own rules and procedures, but Congress has declared that an appellate judicial panel must be at least three judges.
3. Third, the petition grossly overstated common practice when it argued that  the operating procedure of “virtually every circuit” would prohibit this outcome.

In my mind, none of these arguments are particularly compelling.  But, I expect that the court will choose to simply deny the rehearing without further comment.  If the court forces itself to make an express decision, it will only draw further criticism.

It is nice to think of the Federal Government in terms of its various institutions of government, such as the Federal Circuit Court of Appeals or the US Patent & Trademark Office.  That framework provides a sense of stability and coherence.  But, perhaps I should take this case as a reminder that the constitutional structure of our government is not based upon those institutions.  Rather, it centers on the individual humans charged with making the decisions.

Prior Writings on the case:

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Accord’s brief was filed by Paul Skiermont (SkiermontDerby) along with his team of Sarah Spires and Mieke Malmberg.  The Novartis brief was filed by Jane Love (Gibson Dunn). That brief was signed by a host of attorneys, including Robert Trenchard, Thomas Hungar, and Jacob Spencer (all at Gibson Dunn); Deanne Maynerd and Seth Lloyd (both from MoFo); and Willy Jay, David Zimmer, and Edwina Clarke (Goodwin Procter).