Former Fed. Circuit Judge Predicts Shake-Up on Influential Court

A former judge on the US Court of Appeals for the Federal Circuit urged a trade group to prepare for turnover on the influential court with jurisdiction over patent cases.

“There are several judges on that court who are in their 80s or 90s, and that reality is something you all should be paying attention to,” Kathleen O’Malley told a room full of attorneys at the Intellectual Property Owners Association annual conference in Boston on Sunday.

O’Malley pointedly declined to weigh in on the ongoing controversy involving the court and the federal judiciary’s oldest active judge, 96-year-old Pauline Newman. Newman is the subject of a disability and misconduct probe after reportedly refusing her colleagues’ entreaties to take senior status.

“I’m not going to talk about Judge Newman,” she said. “I’m not going to express an opinion about what’s going on. We all know that it’s going on.”

Putting the investigation aside, O’Malley noted the graying of the Federal Circuit. Five of the court’s 12 active judges are 70 or older, and three are over 85.

Some of the court’s younger members, she noted, may also consider other opportunities before they get into their 70s.

“Everyone was shocked when I decided to leave instead of take senior status or die with my boots on like most of the judges on this court have done,” said the 66-year-old O’Malley, who worked at Irell & Manella LLP upon leaving the bench and recently moved to Sullivan & Cromwell LLP.

“I suspect that given how young that some of the other judges were,” she said, “they may decide at 65 that they, too, have another chapter in them, so I think there’s going to be a big turnover on the court.”

O’Malley urged the IP Owners Association’s members to start advocating to the White House for specific lawyers who would be strong candidates to join the court.

“I don’t think it’s too early for you all to start thinking,” she said.

She said the IP Owners Association had been instrumental in her own nomination in 2010, with lawyers with that and other groups making the case that it was important that the Federal Circuit have a district court judge join the bench. O’Malley was a federal judge in Ohio before her elevation to the Federal Circuit.

Judges Newman and Alan D. Lourie “are the only two in-house people that are on the court, and Alan’s in his late 80s and Pauline’s in her mid-90s, so maybe there’s an in-house person that you all want to get behind—or maybe you all think that you need another active litigator because there’s not a lot.”

Then O’Malley hinted that her fellow panelist and colleague at Sullivan & Cromwell, Andrei Iancu, who previously led the US Patent & Trademark Office, could be a candidate.

“Maybe you want someone who was formerly at the PTO,” she said wryly.

“Don’t look here,” Iancu quickly interjected.