Interview Finale: Judge Richard Linn, CAFC

This final installment of my interview with Judge Linn of the United States Court of Appeals for the Federal Circuit. In part I of the interview we discussed a number of general background issues, including how the Judge got into the field of patent law and became a Judge on the Federal Circuit. In part II of the interview we discussed the Inns of Court and the Richard Linn Inn Alliance, as well as civility (or lack thereof) in litigation.

In this final segment of the interview, which appears below, we move into the issues of the day: the changing patent laws and Supreme Court interest in patents. We also discuss Judge Linn’s decision to take senior status, the fact that he won’t be able to sit en banc unless he was on the original panel, and the Judge’s idea that only few cases really should be designated as precedential opinions.

[Interviews]

QUINN: Now you mentioned retirement, sitting on your retirement porch and not retired, but you’ve decided to take senior status. I think most attorneys have an idea of what that means.  Our idea of what it means is not probably exactly of what it really means.

LINN:  [Laughter]

QUINN: So maybe we could go down that path and so what made you make that decision and what does it actually mean in terms of your further work here on the Federal Circuit?

LINN: Well, as a senior judge I have less of a case load but I retain the opportunity to continue to hear cases.  What it means is that number one I’ve opened up a spot for another judge so that gives the Court the opportunity to have whatever views another judge might bring.  And I think that’s a healthy thing for any institution.  It allows me to continue to hear cases.  I love the work of the Court, and I love the intellectual challenge, and I love the learning experience that the work on the Court brings and the opportunity to interact with my colleagues with whom I have great respect.  But at the same time it also allows me to cut back a little bit on the amount of work that I do.  I don’t have to carry a full workload, I can carry a full workload if I elect, but I have the opportunity to handle fewer cases. And, you know, none of us is getting any younger.  I’m still healthy, thank goodness, my wife is still healthy, and I have grandchildren that are growing up faster than I would like and I would like to spend more time with them.  So this gives me an opportunity to enjoy life a little bit with my wife while we’re both still healthy and then spend time with my children and my grandchildren, and at the same time continue to do the work at the Court.  It’s really a win-win as I see it.

QUINN: Yes, I’ve seen you around, at the various holiday parties and so forth and the thing that I’ve noted is just how happy you seem. Not that you haven’t always been a happy fellow, but seems that the last few times I’ve bumped into you there’s been an extra amount of happiness.  It seems like you think you’ve made the right decision and are very content with that decision.

LINN: Yes.  For me I think this was the right decision and I am very happy, I’m so fortunate.  I’ve felt honored from day one being here at the Court having the opportunity to serve my country to do the kind of work that I do here and to interact with the kind of people that are all around me here including my colleagues and all of the incredible law clerks that are here.  And to now have the chance to move to a point where I can enjoy a little more time with my wife and my grandkids, that’s a wonderful thing.

I do intend to continue the work of the Inns of Court and this will give me a chance to spend even more time doing that.  I get a great deal of satisfaction from that.  I’ve accomplished a few things with the American Inns of Court, but there is more work to be done.  And I will now have a little bit more time to do that.  All in all, I’m just a lucky guy.

QUINN: Well, now you’re living full-time in Florida and —

LINN: Yes.

QUINN: —and how often do you plan on coming back up to DC?

LINN: As a senior judge I have the opportunity to sit by designation with other courts.  I can sit as a trial judge if I want; I can sit as a circuit judge with other circuits if I am so inclined.  But I so enjoy the work of the Federal Circuit and my colleagues that my plan is not to sit with other courts but to continue at  the Federal Circuit.  I will probably come back regularly at least every other month, and I will hear cases every time I come back.

QUINN: Okay. Now, you as a senior judge you don’t get to sit en banc unless it was from a panel you were assigned to, correct?

LINN: Yes.

QUINN: Are you ready for that?

LINN:  That’s the one major thing that you give up when you take senior status.  And that’s a very big step.

QUINN: Yes.  I can imagine.

LINN: That gives every circuit judge a great deal of pause and it certainly gave me some pause.

QUINN: Especially now because it seems Chief Judge Rader is interested in more en banc cases then maybe some of his predecessors, and right now with so much — I guess, change is the only way to describe it. I —

LINN: Tremendous — tremendous amount of change —

QUINN: — I tell people that when folks in my generation when we’re retiring we’re going to look back at this and say we weathered the 1999 reform, which was a minor one; this one which is maybe the most major reform ever in the AIA — and a when the Supreme Court has shown far more interest in patents then they probably ever have.

LINN: It’s actually troubling to me that there’s so much change going on right now because I’ve been around the block enough to know that the business community we serve and the economy of the country which is so dependent upon innovation and intellectual property demands some degree of certainty.  Business people need to know what the lay of the land is when they are making big decisions, high risk decisions and making investments that have serious effects.  And with all of the uncertainty, I think it’s causing serious problems.  What does this mean?  Well, I hope that over time things settle down.  Like a lot of things, I think there’s a cycle to what happens, and this increased activity is just part of a cycle that hopefully will calm down.  I do think the Supreme Court’s interest in IP will continue, however,  because the Justices realize that this area of the law is critically important to the nation’s economy.

QUINN: There’s going to be a lot of people read what you just said and said, “Oh, my God, no.”

LINN: I think that it will continue.

QUINN: Yes.  I do, too.  I’m afraid — well, what —

LINN: You know, the Supreme Court had a great interest in antitrust and corporate law and continues to have interest in Constitutional Law and a whole host of things, but the activity on the antitrust side of things has calmed down, and IP has certainly moved in to take up that vacuum.   And there’s more of an interaction between the Supreme Court and the Federal Circuit because there are no circuit splits on patent issues.  So the Supreme Court quite naturally looks closely to see whether we are going in the wrong direction.  And, of course, you have two new Supreme Court justices, Justice Sotomayor and Justice Kagan and you have on our court three relatively new judges, Judge O’Malley, Judge Reyna, and Judge Wallach.  And now we have three new nominees for the three vacancies.  So only half of the Court has been around for awhile and you have half of the Court populated by relatively new judges.  All of this means that there will continue to be a lot of changes.

QUINN: Yes.

LINN: Another thing that is driving all of this is the fact that the economy is changing and the technology is changing at an incredible pace.

QUINN: You know, that’s the interesting thing that you raised there, and I, years ago back when the Government was going after Microsoft, I wrote and I screamed as loud as I could from what at the time was an extraordinarily small  platform that it just seemed ridiculous to me to spend all this time and energy going after Microsoft when people that are scientists and engineers know that that technology’s only going to be around for only a short period of time and by the time you go through all of this the only thing you’ve accomplished is tying that entity up so that they miss the next thing.

LINN: Yes.

QUINN: And I wonder, because the substantive work that I do in the patents field is in the software business and methods, Internet applications.  And, you know, unless it is a platform of some sort you’re not going to have any useful life span to it because of how long it takes to get a patent in the first place.  And I wonder whether so much of this change is just change for the sake of change.

Maybe I’ll ask you this because I don’t expect you to respond to some of what I just said.  I always characterize our industry is everybody’s conservative, small “c” conservative, because we’re engineers.  We don’t like to change just for the sake of change and that seems to be unfortunately over the last handful of years the industry has had this enormous amount of change thrust on it and what do you tell clients.  I mean, I go to these presentations and see all these and I speak at them and so forth and on most of the biggest ticket AIA items there will be a fifty-fifty split as to what these things mean within our own industry.

LINN: Yes.  The uncertainty is very difficult, and I all of this change is not healthy.  People used to ask me, “Why doesn’t the Federal Circuit make every opinion precedential?”  They ask because there are juicy little quotable tidbits in every opinion and they want to be able to cite those things.  I’m almost of the opposite view that instead of making everything precedential, we should only make opinions precedential when it’s absolutely necessary and make every other decision non-precedential.

QUINN: Well, that’s interesting because that would almost fit better in with what it seems the Supreme Court wants to do because they seem to want to take every case as a unique entity till they get the right resolution.  I mean, it’s hard to philosophically disagree with that being a good idea, but then you stop and think that there’s 7,500 examiners, most of whom didn’t go to law school, they’re going to have to be on the front line and implementing this case by case approach.

LINN: Every time there is a new precedential opinion, even if it really is not establishing a new precedent, every word has some significance.  Judges often repeat precedent but make the mistake of rephrasing it slightly or expressing it with a different word or two, which then gets argued as a new rule.

QUINN: Yes.

LINN: In those sorts of opinions, we are not necessarily intending to change precedent, but by using different words, the bar assumes we set out a new test or a revised test and then the argument is that, well, the Federal Circuit has established conflicting opinions, so now that requires en banc treatment and the cycle goes on and on.  It’s unsettling.  And now adding to the uncertainty is the AIA, which brings to us a full plate of new unknowns that will take years to sort out.  Talk about uncertainty!

QUINN: Yeah.  I was just having a conversation with somebody because I’m having a lot of difficulty getting my head around this whole Metallizing Engineering debate and what, if anything, Gore v. Garlock adds to the debate. I look at the statute and it has — “or otherwise publicly available” and some people are reading that is not qualifying the stuff that came before it but which would say you can’t get a patent but then they say, well, in that circumstance you could otherwise.  I’m like, oh, my God, you know, it just wants to make me like carve my eyes out with a dull spoon sometimes.  And I think to myself if we who have been in this industry for some many years have these kinds of issues and questions and have these — and you’ve been in these places.  Our discussions get heated because we are passionate about this stuff, right?  How can the average start-up CEO who may have the next great cure or the next great technology — what hope do they have?

Now looking at my watch I see I we’ve been going for a while, and I suspect you have some other appointments you need to get to.

LINN: Actually, I do have a meeting in just a few minutes.

QUINN: That’s fine. We can wrap it up right now and leave on that note.  I really appreciate it.

LINN: Thanks. I enjoyed our discussion.

[End of interview]