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Patent Expertise Will Aid Fed. Cir. Role, Stark Tells Panel (1)

Dec. 1, 2021, 6:33 PMUpdated: Dec. 1, 2021, 8:18 PM

Handling 2,400 patent cases as a trial court judge will help equip Judge Leonard Stark to fill the hole left by the exit of Judge Kathleen M. O’Malley from the nation’s top patent court, Stark told the Senate Judiciary Committee.

That number includes 63 patent cases that have gone to trial, Stark, President Joe Biden’s pick for the upcoming vacancy on the U.S. Court of Appeals for the Federal Circuit, said during his confirmation hearing.

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.

“I think particularly, I will bring with me a recognition of how challenging it is to put together a reviewable record in a patent case. The technology is always complex, the facts are very challenging,” Stark said.

“I think this will also make me someone who would adhere strictly to the applicable standard of review and cause me to strive as best as I can to provide clear guidance and written opinions that I would write,” he told the committee.

Sen. Chris Coons (D-Del.), a member of the panel’s IP subcommittee, said Stark’s “tremendous experience as a trial judge in the District of Delaware makes him spectacularly qualified for this particular nomination and role.”

Sen. Patrick Leahy (D-Vt.), chairman of the IP subcommittee, raised some hot-button patent issues in his questioning, including predictability of Federal Circuit decisions, standing to appeal patent office decisions, and fights over venue for patent cases.

Stark acknowledged the issues, but stopped short of saying more than that he would apply the law to the facts of each case.

Another Trial Judge

University of Richmond law professor Carl Tobias, who writes about federal judicial selection, said Stark’s experience in a “critical venue for patent cases” prepares him well for the Federal Circuit.

“The judge’s testimony also showed that he will respect precedent, apply the law to the facts in each case, treat respectfully and fairly all litigants, carefully resolve disputes, be collegial and have balanced judicial temperament,” Tobias said. “The Senate should easily confirm him in early 2022.”

The vacancy 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 if he succeeds her.

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.

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 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.

Hot Seat

Separately, ACLU voting rights attorney and Manhattan federal trial court nominee Dale Ho told the committee that he regretted when his past social media activity “crossed the line with overheated rhetoric,” and pledged fairness as a judge, if confirmed.

Republicans at the hearing grilled him about tweets, retweets, writings, and statements attributed to him on race, politics, and the Supreme Court they viewed as biased, hostile to conservatives, and disqualifying for the bench.

“Mr. Ho. You’re a smart man, I can tell. But I think you’re an angry man. And I really have great concerns about voting for you,” said Sen. John Kennedy (R-La.). ”We don’t need federal judges who are angry, we need federal judges who are fair and can see both points of view.”

Outside conservative advocacy groups are targeting Ho in an ad campaign.

Ho pledged fairness and acknowledged pushing the envelope at times as part of his job.

“It doesn’t reflect who I am. It doesn’t reflect how I’ve shown up in court, or how I’ve conducted myself in personal settings,” Ho said. “I’m deeply committed to the principle of equal justice under the law and if confirmed, I’ll do everything I can to ensure that everyone who comes before the court gets a fair shake, a fair opportunity to be heard, and ultimately equal treatment under the law.”

Judiciary Chair Richard Durbin (D-Ill.) called out Republicans for opposing Biden’s judicial nominees based on past advocacy work, saying a number of confirmed judges appointed by President Donald Trump had similar experience.

Busy Patent Venue

The committee also considered the nomination of Jacqueline Corley, a magistrate judge in the Northern District of California, for a district judge seat on that court. It is among the busiest patent venues in the U.S.

The committee didn’t ask Corley any specific questions about patent law, but gave her an opportunity to talk about her 10 years of experience as a magistrate judge, writing nearly 2,000 opinions and overseeing over a dozen jury trials.

—With assistance from John Crawley.

(Updated with section about questions to federal trial court nominee Dale Ho.)

To contact the reporter on this story: Perry Cooper in Washington at

To contact the editor responsible for this story: Renee Schoof at