Saturday, April 15, 2023

At 95 it's high time to retire: Federal Circuit's chief judge deserves respect and trust for her complaint over Judge Newman's alleged inability and misconduct

I know that the position I'm taking here is not going to be popular with a significant part of this blog's audience. On LinkedIn and other websites I can see that many patent law practitioners take 95-year-old Judge Pauline Newman's side, but I respectfully disagree.

As a result of all of that outrage, the Judicial Council of the United States Court of Appeals for the Federal Circuit felt forced to issue a public statement yesterday (Friday)--a rare exception from the normally "strong obligations of confidentiality regarding misconduct and disability proceedings"--confirming "the existence of a proceeding under the Act and Rules naming Judge Newman as the subject judge."

The Federal Circuit also released a public redacted version (PDF) of a March 24 order and an April 13 order (PDF), both handed down by Chief Judge Kimberly A. Moore. The more recent order notes that further to the March 24 order, "a special committee composed of Chied Judge Moore, Judge Prost, and Judge Taranto (the Committee) was appointed to investigate and reports its findings and recommendations with respect to [the Chief Judge's complaint]."

What has rallied a number of IP practicioners behind Judge Newman is that she believes to be the only Federal Circuit judge left to care about the patent system. Please...

There may very well have been times, such as under then-Chief Judge Randall Rader, where the Federal Circuit was patentee-friendlier, but the notion that the Federal Circuit would descend into an infringement-friendly venue if not for Judge Newman's persistent efforts is absurd. As a litigation watcher, I consider the Federal Circuit balanced (and anything but anti-IP).

The question has been raised why Chief Judge Moore initially attempted to persuade Judge Newman to accept senior status, but is now seeking her forcible retirement. I don't see any inconsistency there. The suggestion to go senior was intended to mitigate a problem (such as delayed rulings, of which the public redacted version of the March 24 order provides multiple examples) while avoiding an outright conflict that is not in the interest of the institution. This doesn't mean that Chief Judge Moore wouldn't have urged Judge Newman to retire if a reduction of her workload had proved insufficient to address the problem.

It is unfair to focus on Chief Judge Moore when "half of the active judges of the court hav[e] expressed their concerns to Judge Newman or tr[ied] to express their concerns." Concerns have also been raised by "staff" according to the March 24 order.

Anecdotal evidence such as people saying they had conversation with Judge Newman a few years ago doesn't count. At that age, decline can be rapid.

I tend to agree with Judge Posner, who said in a Slate inteview that "there should be mandatory retirement for all judges at a fixed age, probably 80."

That is a middle ground between systems such as the new Unified Patent Court--where judges need to be reappointed every six years, which definitely compromises their independence--and the life tenure of U.S. federal judges. Also, I think it's regrettable that judges in some jurisdictions are forced to retire too early. For instance, Judge Andreas Voss ("Voß" in German) of the Karlsruhe Higher Regional Court didn't apply for a UPC judgeship because he's 62. German judges have to retire at 65, UPC judges at 67. I don't know whether Judge Voss prefers to retire at 65 anyway, but it's a fact that he had no choice, though he's one of the most brilliant patent judges in Europe. He should have been allowed to serve on the UPC for at least one term.

Even some U.S. state judges have to retire at a certain age. I don't understand why parts of the IP community are now criticizing Chief Judge Moore and various colleagues who share her concerns. To the extent that some believe Judge Newman would have deserved better, it's now clear based on the documents the Fed. Cir. released yesterday that Judge Newman was adamant about neither retiring nor going senior. She had every opportunity to "salir por la puerta grande" as it is called in Spanish. She has no one to blame but herself, and that decision in and of itself is an indication of the Federal Circuit's Judicial Council most likely having a point.