The Senate Judiciary Committee advanced John F. Murphy’s nomination to the Eastern District of Pennsylvania, making the Baker Hostetler partner one step closer to joining the elite group of former Federal Circuit clerks now on the bench.
The panel voted to approve Murphy’s nomination by an 18-4 vote Thursday. President Joe Biden tapped Murphy—a patent litigator, Rutgers Law-Camden adjunct professor, and former clerk to Chief Judge Kimberly A. Moore at the US Court of Appeals for the Federal Circuit—to be the newest district judge in the Eastern District of Pennsylvania in July.
“John is a talented, intelligent, lawyer and a nice guy,” said Jennifer Nall, a partner at DLA Piper who clerked for Judge Timothy B. Dyk at the same time as Murphy. “He’ll be a fantastic district court judge who will really care about digging into issues and understanding the arguments and trying to get it right.”
If confirmed by the full Senate, Murphy would be one of the few former Federal Circuit clerks to become a federal judge. He would join US District Judge J. Campbell Barker in the Eastern District of Texas, who clerked for Judge William Bryson; Jennifer Hall, a magistrate judge in Delaware; and Paul Grewal, a former magistrate judge in the Northern District of California.
Confirmation would put Murphy on the short-list to one day be elevated to the Federal Circuit.
Some Federal Circuit judges, including Moore and Tiffany P. Cunningham, also clerked for the court.
“In general, most of the Federal Circuit clerks will often go work in IP or into law firms, or just have a career as an IP litigator,” said Shashank Upadhye of Updahye Tang LLP. “The likelihood that an IP person then takes the bench is less often.”
Key Trial Experience
Murphy has represented both plaintiffs and defendants—including Microsoft Corp. and Comcast Cable Communications—in high-profile patent disputes at the district court level, the Patent Trial and Appeal Board, and the Federal Circuit.
Last year, Murphy was part of a Baker Hostetler team that won a $30,000-per-megawatt royalty for
Murphy’s trial experience will translate to the bench, said Timothy Holbrook, an Emory University law professor who co-authored the casebook Patent Litigation and Strategy with Moore and Murphy.
“Patent litigators like John, particularly who are trial focused, know civil procedures intimately,” Holbrook said. “We need district court judges with civil experience as well. If you’re not familiar with how to handle a trial, it can be challenging.”
Help for Delaware
While the Eastern District of Pennsylvania isn’t a magnet for patent cases—only 17 were filed there in 2021, according to Bloomberg Law data—Murphy may help out in Delaware as a visiting judge, attorneys said. Delaware attorneys expect a steep rise in cases after a July order in the Western District of Texas created a hurdle for patent plaintiffs trying to file in Judge Alan Albright’s patent owner-friendly court.
“The Delaware district court has a huge patent docket that it’s very challenging there for the judges to keep up with,” said Louis Tompros, a WilmerHale partner who also clerked with Murphy. “I think if John is willing to do that, he’d be a tremendous help to deal with some of the patent issues that come up there.”
Murphy could also establish his own local rules that attract patent plaintiffs, in the style of Albright, whose speedy trial times quickly made his courtroom the most popular patent venue in the country.
“Because patent cases are nationwide, there’s an impetus to gravitate toward places that handle them effectively, and it may very well be that the Eastern District of Pennsylvania begins to go that direction because of John,” Tompros said. “You never know where people are going to want to file their patent case.”