Stark Brings Extensive Patent Experience to Federal Circuit (2)

President Joe Biden has picked Judge Leonard Stark to be the next member of the Federal Circuit, the nation’s top patent court.

Stark has served since 2010 on the U.S. District Court for the District of Delaware, one of the busiest trial court dockets in the country for patent cases.

The vacancy on the U.S. Court of Appeals for the Federal Circuit comes as Judge Kathleen M. O’Malley plans to retire in March 2022. O’Malley is currently the only member of the court with experience as a trial judge. Stark will assume that role when he succeeds her.

“The replacement of the court member with district court judicial experience with a district court judge is something the bar had been hoping for, especially one coming from such a patent heavy jurisdiction,” Katherine Helm, a Dechert LLP partner, said in an email, calling Stark “a fantastic addition” to the Federal Circuit.

This is Biden’s second nomination for the Federal Circuit. His first pick, Tiffany Cunningham, joined the court Sept. 1, replacing Judge Evan J. Wallach, who took senior status in May. There were no vacancies on the court during the Trump administration.

Biden also announced the names of eight candidates he is nominating for federal trial court seats, which continue a trend of prioritizing professional and demographic diversity. Two of the district court nominees—Trina Thompson for the Northern District of California and Anne Rachel Traum for the District of Nevada—are former public defenders.

Patent Expertise

Edward Reines, a partner at Weil, Gotshal & Manges LLP, called Stark a “perfect choice,” lamenting how light the Federal Circuit bench has been on judges with jury trial experience. “Having stood in the shoes of a trial judge, you’re very well positioned to know where latitude to the trial judge is appropriate and where it isn’t,” Reines said.

Stark, like Cunningham and the previous appointee, Judge Kara F. Stoll, has extensive experience with patent litigation. About two-thirds of the Federal Circuit’s docket is patent appeals; the rest is made up of international trade cases and certain suits against the government.

“While this pick makes sense, it will be interesting to see if President Biden will have an opportunity to nominate other Federal Circuit judges—and if he does, whether we’ll continue to see a focus on a patent law background, which does make up a significant portion of the docket, or if we’ll see judges with experience in the other areas of the docket, too,” William and Mary Law School professor Sarah R. Wasserman Rajec said in an email.

Patent litigator Douglas Bridges of Capital Legal Group LLC noted Stark’s “immense experience in patent matters and the influence that he has already exerted in the patent world.”

Stark became chief judge in Delaware shortly after the U.S. Supreme Court issued its decision in Alice Corp. v. CLS Bank International, which upended the law on patent eligibility under Section 101 of the Patent Act. Since then Stark has issued 53 opinions on eligibility, Bridges said in an email.

Ropes & Gray LLP partner Matthew Rizzolo pointed to Stark’s novel practice of holding “Section 101 Days,” where he addresses multiple 101 motions in multiple cases in one hearing to streamline the process. That practice exemplifies how Stark has developed and refined procedures for patent cases in innovative ways, Rizzolo said in an email.

Diverse Background

Before his appointment to the district court in Delaware, Stark was a magistrate judge on the court from 2007 to 2010. He had also served as an assistant U.S. attorney in Delaware in both the criminal and civil divisions from 2002 to 2007.

“Having a judge on the Federal Circuit who has been an AUSA, magistrate, and trial judge will put a voice on the bench who understands how their appellate decisions will impact the thousands of ongoing patent cases,” Bridges said.

After graduating from Yale Law School, Stark served as a law clerk for Third Circuit Judge Walter Stapleton and was an associate in the Wilmington, Del., office of Skadden, Arps, Slate, Meagher & Flom LLP.

Stark is 52, experienced but with the potential for a long lifetime appointment if approved by the Senate.

“Finding a judge at the sweet spot where they are young enough to be nominated for an appellate judgeship and to have greater than a decade of judicial experience already is not an easy hole to thread,” Reines said.

Loss for Delaware

In addition to his experience, Stark is also a great role model for work-life balance, Helm said. “He frequently speaks of his family and the challenges of parenting alongside an incredibly demanding legal career,” she said.

“I recall him giving advice at a bar association event to practitioners to make sure the introductions of briefs are compelling because he may not get much past them if not, especially if he was reading them at his kid’s after-school sports games which he often did,” she said. “So relatable!”

Stark currently has 264 active patent cases on his docket, and more may be coming as the Federal Circuit orders Judge Alan Albright of the Western District of Texas to relinquish more cases, Bridges said. “Losing one of their four district judges could not come at a worse time for them,” he said of the court in Delaware.

The court is already so loaded down with patent cases it regularly taps judges from other jurisdictions, including the Federal Circuit, to help handle its docket.

—With assistance from Madison Alder.