CAFC Surprise: Rader Stepping Down as Chief Judge

Chief Judge Randall R. Rader today announced that he will step down as Chief Judge of the United States Court of Appeals for the Federal Circuit on May 30, 2014. Judge Rader will continue in active service on the Court, although the official announcement says that he will also undertake additional teaching, lecturing and travel.

This surprise announcement by Judge Rader, who turned 65 on April 29, 2014, means that Judge Sharon Prost will become the next Chief Judge of the Federal Circuit. Had Judge Rader served his entire term as Chief Judge succession rules would have meant that the title of Chief Judge would pass Judge Prost and go on to Judge Moore, who remains next in line after Judge Prost.

Industry Leaders on Judge Rader

Upon learning that Judge Rader would be stepping down from the Federal Circuit I reached out to several industry insiders who are in a unique position to comment on what Judge Rader has meant to the Federal Circuit and to patent law more generally.

“Chief Judge Rader is responsible for advancing patent law across the globe,” said Robert Stoll, former Commissioner for Patents at the United States Patent and Trademark Office and current partner at Drinker Biddle in charge of the firm’s intellectual property practice group. “The relationships he has established with judges in other countries complemented the harmonization efforts of the Executive Branch and served as another avenue to improve the patent system. He should be lauded for these efforts.”

“Several years ago I gave a speech at John Marshal Law School and predicted that [Judge Rader] would ‘make the Federal Circuit a truly international court, known the world over.’  Through his interaction with the intellectual property communities of other countries, he has made the Federal Circuit a household name throughout the world,” said Don Dunner, a partner at Finnegan, Henderson, Farabow, Garrett & Dunner, who is known throughout the industry as the Dean of appellate advocates at the Federal Circuit.  “He and the Court are known everywhere and I think it is fair to say that he has had a meaningful impact on the intellectual property jurisprudence of other countries, in addition to that of his own.  His institution of joint judicial conferences in Tokyo, Beijing and Seoul are small examples of his efforts to build a bridge between the United States intellectual property system and those of other countries.”

“Chief Judge Rader served an active and distinguished term as Chief, with outstanding accomplishments, and his leadership will be missed,” said AIPLA Executive Director Q. Todd Dickinson. “At the same time, we are pleased to have the benefit of his continued service on the Court. His love of the law has been demonstrated by his international outreach and academic work, and his love of the court has been demonstrated by his continuing efforts to improve the process of vindicating essential rights in innovation.  We also also very pleased to have a colleague of Judge Prost’s calibre to succeed as Chief Judge, and we welcome and look forward to her leadership of the Court.”

Speculation

While the Wall Street Journal and Law.com are speculating that Judge Rader’s decision to step down has to do with a letter endorsing attorney Edward Reines, a patent lawyer at Weil Gotshal & Manges LLP and president of the Federal Circuit Advisory Council, at this time it seems as if the “controversy angle” — if you will — is based on timing and conjecture. While it is correct to notice that the announcement has come suddenly, and after questions have been asked about Judge Rader’s decision to recuse himself in two high-profile cases, it is hard for me to believe that Judge Rader’s decision to step down as Chief Judge would be related to a controversy of any kind.

Those who know Judge Rader also know that since becoming Chief Judge of the Federal Circuit he has kept up a schedule that would break virtually anyone. As the Chief Judge he is responsible for public outreach and he speaks regularly at conferences all over the country. But Judge Rader also teaches patent law at the law school level, and is one of the authors of the seminal text used in law schools across the country. On top of this, Judge Rader regularly travels internationally, speaking at conferences all over the world, mingling with Judges from Asia and elsewhere who are eager to learn about the U.S. judicial process and American patent law. And, yes, he also manages to participate in cases before the Federal Circuit. Thus, the announcement that cites Judge Rader’s desire to spend more time teaching, lecturing and traveling, rings true.

For example, when I interviewed Judge Rader in 2010, just before he assumed the duties of Chief Judge, I asked him about how long he thought he might stay. In other words, whether he saw himself like Judge Rich, and on the Court until the final days, or more like Judge Michel, who left to do other things. A piece of that dialogue seems strikingly relevant today. It went like this:

QUINN: For me personally, I love patent law so much, and I know I am way away off from any retirement, but what would retirement look like for me? I can’t imagine not being involved.

RADER: I think that is true for me too. I’ll continue to teach regardless of where I am and I will continue to do many of the things I am doing now and they will always be at the heart of intellectual property law.

I think, and hope, that Judge Rader will stay on the Federal Circuit for the foreseeable future, and I hope he continues in the important work he has spearheaded with Judges from other countries.

Chief Judge Prost

From a substantive legal point of view the change in leadership at the Federal Circuit may represent a seismic shift. Judge Prost has sometimes found herself aligned with Judges on the Court that seem particularly uncomfortable with an expansive view of patent eligibility. This alone will draw a sharp contrast between Judge Prost and Judge Rader given that Judge Rader has for years been a strong, vocal supporter of strong patent rights. Thus, it would be easy to envision a future where the industry needs to be ready for a different philosophical message coming from the CAFC.

For example, Judge Prost sided with those Judges in CLS Bank v. Alice Corporation that would have rendered software patent ineligible. In fairness, I doubt Judge Prost or the others would agree with the previous statement, but what is true is they found no claiming techniques for software to result in a patent eligible claim in their opinion. Judge Prost also wrote a majority opinion affirming the USPTO’s right to reexamine patent claims despite the fact that the Federal Circuit had previously found the same claims valid over the prior art asserted in reexamination. Judge Prost also sided with the Patent Office when Dr. Tafas and GlaxoSmithKline challenged the Office’s authority to promulgate the so-called claims and continuations rules. See here and here. Later the Federal Circuit vacated the panel decision and denied vacatur, but virtually everyone within the industry was against the claims and continuations rules and an overwhelming majority felt that the USPTO had overstepped its authority.

I realize that with virtually any Judge one can find decisions to criticize. That being said, losing a pro-patent champion at the helm of the Federal Circuit like Judge Rader will be difficult, particularly at this time when there is such a large anti-patent public sentiment.