Timothy B. Dyk: The Education of a Federal Judge

By statute, the Federal Circuit has no more than 12 judges in active service. (Chief Judge Moore, Judges Newman, Lourie, Dyk, Prost, Reyna, Taranto, Chen, Hughes, Stoll, Cunningham, Stark.) The rest are senior. (Judges Mayer, Plager, Clevenger, Schall, Bryson, Linn, Wallach.)

In addition to patent counsel experience, I think it would also be important to have judges with backgrounds in other areas of the court’s jurisdiction (international trade, government contracts, employment law, takings, tax, veterans’ law, etc.)

1. 2.1.1.2.1

   Thanks for the correction.

   As the Federal Circuit is THE appellate court for patent appeals, I disagree with diluting their expertise with more generalists or people specializing in other areas. I think that is how we got where we are.

   1. 2.1.1.2.1.1

      But, look, the same court also has exclusive appellate jurisdiction over international trade disputes, and over government employment disputes, and over Tucker Act cases, and over veterans’ benefit disputes. If “exclusive appellate jurisdiction” means “only pick lawyers related to category X,” then the very charter of the CAFC has set one up for frustration.

      Incidentally, I cannot agree that a lack of patent prosecutors on the CAFC is the cause of our present troubles. At the time that Giles Rich joined the CCPA, he was the first and only patent lawyer on that court. Nevertheless, the patent jurisprudence of that era was excellent. The real source of the rot lies with the SCOTUS, and no amount of changes to the CAFC’s composition will really fix the problem unless and until the SCOTUS problem is solved (ideally by removing the CAFC from certiorari jurisdiction to the SCOTUS).

      1. 2.1.1.2.1.1.1

         I understand that the CCPA sat en banc, so there would always be at least one patent lawyer hearing the appeal. Not necessarily the case with CAFC panels. And Rich was involved in drafting the 1952 Patent Act.

         The CCPA was also less deferential to the USPTO.

         Your point about other duties is well taken. But, most of those are far less complex than patent cases. So, I would still contend that there should be enough patent practitioners on the court to attempt to have one per panel.

         
         
         
         
         
         
         
         
         

         2.1.2

         Trusting Biden’s choice — on anything — reveals how little weight your views should be given, Malcolm.

         
         
         
         
         

         1

         Costco is probably not selling this one at a discount.