Biden Announces Intent to Nominate Tiffany Cunningham to Federal Circuit

By IPWatchdog
March 30, 2021

President Joe Biden today announced 11 judicial candidates – 10 for federal circuit and district court judge positions, including Tiffany Cunningham as nominee for the United States Court of Appeals for the Federal Circuit (CAFC). Cunningham would replace Judge Evan J. Wallach, who announced earlier this month that he will retire from active service and assume senior status as of May 31, 2021, after 10 years of service with the court.

Cunningham is a patent litigation partner at Perkins Coie LLP in Chicago, Illinois. She has been with the firm since 2014, and prior to that worked in the Chicago office of Kirkland & Ellis LLP. She became a partner in 2007.

She served as a law clerk to Judge Timothy B. Dyk on the CAFC from 2001 to 2002. She received her J.D. from Harvard Law School in 2001 and her Bachelor of Science in chemical engineering from the Massachusetts Institute of Technology in 1998.

Cunningham’s was not among the names that came up in IPWatchdog’s survey of a small number of patent stakeholders regarding potential candidates, but, as Judge Paul Michel mentioned in his comments on the subject, the court has never had an African American judge, much less an African American woman.

According to her firm profile, Cunningham’s experience includes chiefly chemical and pharmaceutical disciplines, biotechnology, computer science, automotive, and mechanical engineering. The list of her representative experience includes patent infringement cases in district courts and at the Federal Circuit, as well as International Trade Commission and trade secret cases.

Biden also nominated the following candidates to fill other judicial vacancies:

In a statement, Biden said of the nominations:

This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession. Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people — and together they represent the broad diversity of background, experience, and perspective that makes our nation strong.

The statement also noted that today’s announcement of Biden’s intent to nominate these judges “is faster than any President in modern history. With respect to Circuit and District Courts, none of the last four administrations had nominated more than two candidates by this point in their presidency.”

 

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Discuss this

There are currently 80 Comments comments.

  1. Keep Looking March 30, 2021 4:40 pm

    Tiffany Cunningham is awesome. Right on the money, President Biden! Keep ’em coming.

  2. Pro Say March 30, 2021 6:59 pm

    Congratulations Tiffany! Well earned and well-deserved.

    I know I speak for all inventors — and especially the 1,000’s of beleaguered independent inventors and smaller, innovative companies — when I respectfully request, hope, and indeed pray that you will do what you can to return the Court to the very limited patent eligibility exclusions that the Supreme Court intended with their Mayo and Alice decisions (while noting that SCOTUS themselves usurped a responsibility which under our Constitution is Congress’ alone).

    As you no doubt know given your years of real-world “in the trenches” experience, American innovation is suffering. Badly.

    Please be one of the too-few bright lights in the darkness that is American eligibility jurisIMprudence.

  3. Curious March 30, 2021 7:18 pm

    Clearly, she checks multiple boxes not specifically related to patent law, which was entirely expected.

    Of more relevance to me, she is both an engineer and she has extensive litigation experience as well as experience with/before the Federal Circuit. These are both excellent qualities. Although not mentioned here, she does has a registration number at the USPTO. I have no idea to what extent (if any) she has practiced before the USPTO, but it is a good start nonetheless.

    If I’m going to identify any downsides, I’ll say it would be her clerkship at the Federal Circuit — not that she was a clerk, but who she clerked for. One would be hard pressed to find a more anti-patent judge than Dyk. However, that was 20 years ago and based upon her litigation history, she does not appear to have inherited Dyk’s anti-patent bent.

    What I don’t know is how she’ll apply 35 USC 101. I know, I know … every judge says all they are doing (or will do) is follow precedent. However, the judges at the Federal Circuit follow precedent in very different ways when it comes to 101. The upside is that any judge we get cannot be much worse than what we already have. Even the very best of the judges at the Federal Circuit agree to invalidate far more patents under 101 than they uphold.

    Another question, directed to another poster (the identity of which should be no secret) is this: Did Silicon Valley “select” Ms. Cunningham (i.e., how you thought all Federal Circuit judges were going to be selected by Biden)?

  4. ipguy March 30, 2021 7:29 pm

    An excellent choice.

  5. Jonathan R Stroud March 30, 2021 7:56 pm

    A phenomenal choice.

  6. Night Writer March 31, 2021 4:45 am

    @3 Curious Another question, directed to another poster (the identity of which should be no secret) is this: Did Silicon Valley “select” Ms. Cunningham (i.e., how you thought all Federal Circuit judges were going to be selected by Biden)?

    I never said “all”. I referred to the judges that were appointed by Obama after O’Malley. And I think a look at that lot of judges backs up my statement.

    I don’t think Cunningham is coming from a SV selection. It looks more like this is a tip to pharma. But it is really hard to tell without more. I don’t know what her personal views on patents are. Maybe she is virulent anti-patent and speaks about it personally like some of Obama’s appointments did prior to appointment. Without knowing more it is hard to say.

  7. B March 31, 2021 3:24 pm

    @ curious “Clearly, she checks multiple boxes not specifically related to patent law, which was entirely expected. . . . Of more relevance to me, she is both an engineer and she has extensive litigation experience as well as experience with/before the Federal Circuit.”

    I am in 100% agreement.

    “One would be hard pressed to find a more anti-patent judge than Dyk.”

    And clueless

    “What I don’t know is how she’ll apply 35 USC 101.”

    THAT is the $100,000 question. On one hand the Dyk influence will not be favorable and whether Biden is as anti-patent as Obama is unknown. On the other hand her tech background is much akin to Judges Moore and Newman, who are the best judges on the bench.

    @ Night Writer “Maybe she is virulent anti-patent and speaks about it personally like some of Obama’s appointments did prior to appointment. Without knowing more it is hard to say.

  8. ipguy March 31, 2021 3:32 pm

    “Maybe she is virulent anti-patent”

    Because patent litigators want to put themselves out of work?

  9. B March 31, 2021 4:28 pm

    ipguy @ “Because patent litigators want to put themselves out of work?”

    Serious question: have you ever been involved in a patent litigation. Bad judges make for extended litigation, but at the same time they can’t be removed from office merely b/c they’re clueless and don’t follow the law.

  10. ipguy March 31, 2021 7:33 pm

    I’m far more concerned about bad patent examiners than bad judges, and bad patent examiners are far less accountable and far more anonymous than bad judges.

  11. B March 31, 2021 9:29 pm

    @ ipguy “I’m far more concerned about bad patent examiners than bad judges, and bad patent examiners are far less accountable and far more anonymous than bad judges.”

    I fully understand and deeply appreciate your position, but you can have an ombudsman intervene in the process and/or complain to a SPE or director. I’ve had several examiners removed from a case for cause. Of course, this doesn’t work in TC3600.

    That said, try removing a judge even when the judge lies though his teeth and/or knowing violates the law or your Constitutional rights. When judges lie, their fellow judges look the other way. Unless a judge is selling children into slavery or gets caught in a room full of underaged hookers and blow, their job is safe

  12. Night Writer April 1, 2021 7:17 am

    @11 B

    Exactly correct. Thanks B for all your posts. They give me hope that there are other rational actors in this world that have not been beaten down into sniffling co wards that beg for their bread.

  13. RTFMPEP April 1, 2021 3:01 pm

    @11

    Several Examiner’s removed by the ombudsman?
    You got any evidence to back that up?

  14. Anon April 1, 2021 5:47 pm

    RTFMPEP,

    Do you work for the patent office?

    If you do, would you have insight into ANY records published by the ombudsman as far as disciplinary actions (including, but not limited to, removal of an examiner from a case)?

    Or, is your intent to question whether any such action is possible through the Ombudsman program?

  15. Anon April 1, 2021 6:08 pm

    One (of several) reasons that I suspect that you may work for the Office is your moniker.

    MPEP portion is clear enough, and RTF could easily stand for Read The F*#@$%

    You should though be aware that it is strictly NOT the MPEP that controls (leastwise not directly anyone that is NOT an examiner), and you should also be aware that the MPEP has routinely been castigated for its misapplication of case law holdings and other such errors.

    I do realize that putting all of that in an acronym would be pretty unwieldy.

  16. B April 1, 2021 11:49 pm

    @ RTFMPEP “Several Examiner’s removed by the ombudsman?
    You got any evidence to back that up?”

    I never said a single ombudsman ever removed a single examiner, did I? Do you even reading comprehension?

    @ Anon “you should also be aware that the MPEP has routinely been castigated for its misapplication of case law holdings and other such errors.”

    Dude, thankfully we sooooo both know that the MPEP routinely misrepresents the holdings of various cases, and in the 1990s section 2100 was more garbage than fact. It is better now, but anyone who has read the MPEP and case law knows the MPEP isn’t exactly balanced.

    Hey, RTFMPEP, read MPEP s2111. Absent are any mention of Microsoft v Proxyconn, In re Smith Int’l, and Kaneka v. Xiamen Kingdomway – some of the leading CAFC cases on claim interpretation.

    Fortunately, at least one of the talentless folk who edit the MPEP read In re Suitco Surface. Unfortunately, said person was too stupid to reflect the holding of that case in the MPEP.

    How about Arendi S.A.R.L. v. Apple? One would think that someone at the USPTO would have read that case and explained the holding in MPEP s2141 as to how it modified the understanding of KSR v. Teleflex. Nope, didn’t happen. Only vague mention of the case while leaving out the meat of the holding. See also https://www.ipwatchdog.com/2018/08/13/misapplication-obviousness-mpep-gets-wrong-obviousness-rejections/id=100254/

    I’ll put my knowledge of the MPEP against RTFMPEP any day, and Anon is correct – RTFMPEP works for the PTO. No one else has so much faith in that document as to use MPEP in his/her moniker.

  17. AAA JJ April 2, 2021 8:39 am

    “I fully understand and deeply appreciate your position, but you can have an ombudsman intervene in the process and/or complain to a SPE or director. I’ve had several examiners removed from a case for cause. Of course, this doesn’t work in TC3600.”

    Any serial numbers you want to provide to prove this?

  18. Night Writer April 2, 2021 9:05 am

    The reality is that Andrei Iancu should have been appointed.

    Newman and Iancu could have cleared up 101 and easily have cabined Alice.

    Probably the two of them could out maneuver the likes of Taranto and have cleaned up patent law.

    But, his skin color is wrong and his sex is wrong.

    I’d bet that 80 percent or more of patent attorneys would vote for Andrei Iancu to be on the CAFC.

  19. Night Writer April 2, 2021 10:49 am

    @17 AAA JJ

    I had an examiner removed by their supervisor. The examiner was thoroughly unprofessional and was yelling at me among other things. A brief conversation with the supervisor resulted in the examiner being replaced and an allowance.

  20. B April 2, 2021 11:11 am

    @ AAA JJ “Any serial numbers you want to provide to prove this?”

    I wouldn’t remember either of them after so many years, and I’ve had many patent applications change examiners for other reasons, e.g., the Examiner left the PTO. However, the next one may be this year.

    I’ll keep you informed, spanky.

    @ Night Writer “But, his skin color is wrong and his sex is wrong.”

    You’re correct in that the racism and sexism of Woke hindered Iancu from any consideration at the CAFC. Still, let’s give Cunningham a chance to prove herself.

    “Probably the two of them could out maneuver the likes of Taranto and have cleaned up patent law.”

    You don’t think Moore and Taranto went at it when deciding American Axle with Moore yelling “Do you even understand the difference between issues of fact and and issues of law?”

    I forget who originally said it, but the fact is winning an argument with a smart person is difficult; winning an argument with a stupid person is near impossible. Taranto can’t count to 102, and if Taranto ever read 112(f) I’d be shocked.

  21. Anon April 2, 2021 11:22 am

    AAA JJ – seeking ‘proof’ is more of an indicator that you are chapped from other threads in which B is handing you your head.

    (He’s by no means the only one doing so)

  22. AAA JJ April 2, 2021 2:34 pm

    “The reality is that Andrei Iancu should have been appointed.

    But, his skin color is wrong and his sex is wrong.”

    Right. Because it’s routine for an incoming president of a different party to appoint executive branch appointees of the outgoing president to Article III judgeships. Remind me again how many Obama appointees Drumpf put on the bench.

    “I wouldn’t remember either of them after so many years,…”

    I thought you said it was several.

    “I’ll keep you informed…”

    Thanks. Good luck. I hope you do a better job than you did against Mr. Goldberg. Spanky.

    “Still, let’s give Cunningham a chance to prove herself.”

    I wonder why you think she’s needs “a chance to prove herself.” (Just kidding, I know why you think that.)

  23. B April 2, 2021 3:16 pm

    @ AAA JJ “Remind me again how many Obama appointees
    Drumpf put on the bench.”

    Wow. “Drumpf.”

    I guess someone in the room could respond, “Doh’bama” or “Bi-dumb” some really stupid and childish thing like that, but obviously you’d rather stick to petty.

    What you don’t understand is that you could have made a perfectly reasonable point without the childish nonsense.

    Sad really.

    ” I hope you do a better job than you did against Mr. Goldberg. Spanky.”

    Some serious cyber-stalking of 10 years ago. Will you be rifling through my garbage next?

    Seek professional help.

    FWIW, Goldberg is so out of business he can’t even get a BIA gig these days.

    “I wonder why you think she’s needs “a chance to prove herself.” (Just kidding, I know why you think that.)”

    No, I don’t think you’re capable of understanding why attorneys may care about the competency of a judge, and not be particularly concerned about skin color.

  24. Night Writer April 2, 2021 4:13 pm

    @AAA JJ April 2, 2021 2:34 pm
    “The reality is that Andrei Iancu should have been appointed.
    “Right…. ”

    AAA JJ: I agree basically with what you wrote. I meant the “should have been” as a wish. I agree too that we should give the new judge a chance. She may turn out to be great. Cross my fingers.

  25. ipguy April 2, 2021 4:13 pm

    @18 “The reality is that Andrei Iancu should have been appointed.”

    The reality is that Andrei Iancu is a patent litigator, as is Ms. Cunningham. The ultimate dream is for a patent prosecutor to be appointed because a patent prosecutor has the experience dealing with 101 issues at the USPTO level, when every TC, Art Unit, SPE, Primary, and Assistant Examiner has a different application of the so-called guidelines (which the Federal Circuit shows no deference to). Director Iancu did a fine job during his tenure but Director Iancu was limited by his experience, which was as a patent litigator. That being said, Ms. Cunningham is still an excellent choice, and Mr. Iancu wants to get back to Los Angeles, cash in on his status as a former Director, and resume making huge amounts of money in private practice.

  26. Night Writer April 3, 2021 7:43 am

    @25 ipguy

    My point was that Andrei Iancu cannot even be considered because of his skin color and sex. That is a pretty sad situation.

    Plus, ipguy, I am quite capable of rating people and understanding the difference. I’ve done both litigation and prosecution.

    The key to what type of person we needed is someone like Iancu that sees in 101 that it is easily cabined and that the CAFC case law is the problem. Iancu was obviously ready to fight the anti-patent judicial activists on the CAFC and obviously knew exactly how to do it by creating new case law with Newman.

  27. concerned April 3, 2021 10:06 am

    It would be nice to have people in the patent process who write statements that are truthful on the surface. I hope Ms. Cunningham will be one of them.

    The statements that have been written in my prosecution is shameful.

    Examples:

    Routine, well understood and conventional: Even though the Official Record reveals that is was proven nobody on Earth does the claims, individually or as a combination.

    Mental process: I will hand anyone on Earth a random list of 100 people and challenge that person to do the Vulcan mind meld and name 3 people who are the subject matter. Fools errand: No working professional or expert has been able to do so in 45 years.

    Insignificant post solution activity: Process corrects working professionals, reconciles a matter outside the law, avoids wrongful payments to family members requiring re-payment and saves governments millions of dollars in erroneous payments.

    Of course, proof is never offered to substantiate the incredible statements. Case law was offered in their rejection where a process/solution has been around for years and slapped on a computer, and then compared to my application where the Examiner admits in writing that a dramatic, substantial, new and novel result occurred. No 102 or 103 rejections. Cut and paste Alice, Flook, Benson, Electric Power, etc. ad Infinium regardless of relevancy.

    Accordingly, if Ms. Cunningham writes opinions that appear truthful on the surface, it would be a step in the right direction.

  28. Anon April 3, 2021 11:40 am

    Night Writer,

    I hear you – Biden has made it clear that he is NOT looking for the best candidates (bar none), but that he is looking for the best candidates AFTER an application of ISMs that screen the pool.

    That being said, I DO have to disagree with you on your last point, in at least so far as the CAFC will need more than just two judges to do that “create new case law” angle.

    This is due in fact to a number of factors, one of which is the abhorrent LACK of leadership at the Chief Judge position (I do not know who is next in line), but even seeing as Michel and Radar could NOT corral the other judges to behave properly (for example, one panel is actually supposed to follow a prior panel’s rule as to its precedence, and it is supposed to take an En Banc panel to change that first panel precedential decision).

    This clearly has not been done with 101 jurisprudence, and — this shows the depth of fracture — even En Banc ensembles cannot ‘make up their mind’ on just how to apply the re-writings of the Supreme Court.

    If that does not scream out Void for Vagueness, I do not know what will.

    Also – given the sheer number of NOT taking up cert petitions (for the absolute Gordian Knot mess of 101 at the CAFC level), I do believe (albeit cynically) that IF the CAFC were to actually ‘get its act together’ and minimize the awful impact of what the Supreme Court has unleashed, then THAT might be the case that the Supreme Court would take, if only to re-establish just who exactly is holding the firehose (and who are the simians in the cage).

  29. AAA JJ April 3, 2021 2:38 pm

    Ten Drumpf nominees to the federal bench were rated unqualified by the ABA. Let me know when Joe gets to one.

  30. ipguy April 3, 2021 2:56 pm

    @26
    “My point was that Andrei Iancu cannot even be considered because of his skin color and sex.”

    Please put your politics aside and consider it from the objective historical perspective with regard to how long a Director (Commissioner prior to that) appointed by a previous administration has been retained by the next administration.

    How long did Q. Todd Dickinson last into the George W. Bush administration? How long did Jon W. Dudas last into the Obama administration? How long did Michelle K. Lee (albeit an Acting Director) last into the Trump administration?

    The new administration replaces the Director appointed by the previous administration. That’s it. Don’t believe me? Take a look at when the terms of USPTO leaders ended.
    https://www.uspto.gov/about-us/past-uspto-leaders

    Stick to the facts. Avoid the politics.

  31. B April 3, 2021 4:29 pm

    @ concerned “It would be nice to have people in the patent process who write statements that are truthful on the surface.”

    You nailed the problem

    Examiners are mostly just doing what they’re told. Sad that the integrity of PTO management and the CAFC is in question.

    @ Night Writer “My point was that Andrei Iancu cannot even be considered because of his skin color and sex. That is a pretty sad situation.”

    The bigotry of the woke

    @ Anon “I hear you – Biden has made it clear that he is NOT looking for the best candidates (bar none), but that he is looking for the best candidates AFTER an application of ISMs that screen the pool.

  32. Anon April 3, 2021 6:47 pm

    ipguy,

    You entirely missed the point being made. No one was talking about the retention of Iancu as director.

    The point of the discussion was whether or not Iancu should have been considered for a slot on the Court of Appeals for the Federal Circuit.

    AAA JJ, maybe you should look into the TDS that has so consumed you. Also not at point was that nominee Cunningham was somehow unfit, or otherwise ill-suited.

    Identity politics is NOT a “Drumpf” or “anti-Drumpf” thing.

    You should understand the foundations of your own Beliebs a bit better.

  33. B April 3, 2021 7:51 pm

    @ AAA JJ “Ten Drumpf nominees to the federal bench were rated unqualified by the ABA.”

    Only ten? By the highly-biased ABA? https://townhall.com/tipsheet/cortneyobrien/2019/10/30/the-american-bar-association-has-just-outdone-itself-with-conservative-bias-sa-n2555575

    Just FYI: “The American Bar Association secretly declared that 14 of President Barack Obama’s nominees to the federal bench are ‘not qualified.’” https://www.newsmax.com/InsideCover/Obama-Judge-picks-unqualified/2011/11/23/id/418961/

    @ Anon “Identity politics is NOT a “Drumpf” or “anti-Drumpf” thing.”

    Yeah, but there’s a strong correlation. The “anti-Drumpf” crowd loves identity politics, and don’t realize that they are the standard-bearers of modern racism.

    Drumf? Seriously, How old is AAA JJ? Twelve?

    @ ipguy “Stick to the facts. Avoid the politics.”

    Golly, weren’t you the guy who recently posted, “What is the difference between Southern Conservatives filibustering civil rights legislation in the 1960s and Southern Conservatives pushing for SB-202 in 2021?” while COMPLETELY unable to identify a single “Jim Crow” aspect of SB-202.

    Yeah, and as I remember, you went into a tirade about Strom Thurmond – a guy who’s been dead for nearly two decades and isn’t from Georgia. Talk about stupid politics! You’re the king.

    What you really mean is, “Stick to things I want to believe are facts. Avoid responding to my politics.”

  34. ipguy April 3, 2021 9:09 pm

    @32
    You’re right. My post @30 was in error in terms of the appointment being for director rather than the Federal Circuit. My bad. That said, Night Writer still needs to put his politics aside because appointments to the Federal bench, like appointments to be Director of the USPTO are essentially political appointments. The simplest explanation is that Mr. Iancu not being appointed to the Federal Circuit has more to do with his connection to the GOP than his race or gender. My post @25 stands.

  35. B April 3, 2021 10:08 pm

    @ ipguy “That said, Night Writer still needs to put his politics aside because appointments to the Federal bench, like appointments to be Director of the USPTO are essentially political appointments.”

    Sooooo, Night Writer should put aside politics because the appointment at issue is political?

    Do you ever read your own posts?

    Just asking

  36. Anon April 3, 2021 10:40 pm

    ipguy, what is his “connection” with the Republican Party, and are they the types of things that should disqualify someone from the (supposedly) neutral branch of the government — or do you firmly believe that “proper” stacking of the judicial branch is something that should run at the mercy of vagaries of a ruling party (and not blink an eye).

  37. Concerned April 4, 2021 10:27 am

    B: FYI.

    The response to PTAB was just filed. PTAB was called out for not addressing the evidence of record and not addressing SCOTUS court cases in support of my application.

    PTAB was further called out for quoting court cases where no longstanding problem was admittedly solved by at least one party, and compared to my application where it is not in disputed that a REAL problem with substantial results are realized. The Examiner admits as much and PTAB did not address.

    I suspect the PTAB will continue to not address our arguments or case law in support of the application, and cut and paste irrelevant court cases where the results were never quantified in the Official Record.

  38. B April 4, 2021 12:24 pm

    @ concerned “I suspect the PTAB will continue to not address our arguments or case law in support of the application . . . . ”

    I suspect that you suspect correctly. There’s no downside. The PTAB has never been reversed on an Alice/Mayo rejection by the CAFC.

  39. ipguy April 4, 2021 1:32 pm

    @35

    “what is his “connection” with the Republican Party”

    The connections that get you appointed to be USPTO Director. I worked with someone who worked with Mr. Iancu “back in the day” and he outlined the Republican connections that led to Director Iancu’s nomination by a Republican President. I hate to break the news to you but political appointments are generally….wait for it….political. They can be rewards for political donations, trusted party members who can be counted on to follow political dictates from on high), etc.

    In my experience, the Director of the USPTO is not politically neutral. Some recent Directors were nothing more than political hacks with no business being Director. Remember former Republican Congressman James Rogan with his degree in political science? Remember Jon Dudas (former Republican congressional staffer – talk about nothing but political connections) with his bachelor’s degree in finance? Remember Bruce Lehman (rumor had it he got made Comm. of Patents and Trademarks as a consolation price for not getting the Librarian of Congress position)? The Director is a political appointee who answers to another political appointee, the Secretary of Commerce. They follow the political policies of the Executive Branch. I’ve seen the pro-allowance and anti-allowance pendulums swing back and forth with the comings and goings of the politics of the administrations for close to three decades. This is the way the real world works.

    The reality is that political parties “stack” (your word, not mine) the judicial branch with judges who are generally in alignment with the political party of the President who nominated them. Mitch McConnell kept hearings on Obama judicial nominees to a trickle and then let loose the floodgates of Trump judicial nominees. Remember the bragging about the record number of judgeships filled and how Republican-appointed judges would dominate the Federal Judiciary for decades? Politics. Is it a meritocracy? No, it’s politics. It is simply the world we live in.

    As I said, my ultimate dream is for a patent prosecutor to be appointed to the Federal Circuit or to Director of the USPTO. In the real world, both are unlikely to ever happen.

  40. RTFMPEP April 4, 2021 3:20 pm

    Keep throwing that hissyfit, b. Ipguy done whupped you good, boy.

  41. B April 4, 2021 3:49 pm

    @ ipguy “Some recent Directors were nothing more than political hacks with no business being Director.”

    I think the vast majority of us agree with this, and indeed your @38 post is spot-on imho.

    One area of possible contention on this point is judges. Judges are to call balls and strikes, not to make policy or legislate from the bench and certainly not to lie through their teeth to spew holdings that are at odds with law and the factual record.

    Judge Chen’s decision in Chamberlain was an instance of such blatant dishonesty that it signaled to the world, “The Federal Circuit is shamelessly willing to misrepresent the evidentiary record when addressing Alice/Mayo.”

    If Tiffany Cunningham shows the integrity and wisdom the world needs and deserves, rather than do whatever the heck Chen and a few notable others are doing, I’ll sing her praises.

  42. Anon April 4, 2021 6:36 pm

    ipguy,

    I appreciate your comments.

    And certainly, at a general level — and specifics as to explicit past Directors are accurate for those individuals.

    But directly to my question here, I still do not see anything explicit as to Iancu (other than the fact that he was appointed by an R).

    Kappos though was appointed by a D.

    The think that we can both agree that there are substantial differences on the merits of the individuals.

    Mere appointment by a D OR by an R just does not reach what I am talking about, and if you really feel that such is enough to not be considered, then I would suggest that you are very much a part of the problem.

    Giving you credit for your patent law discussions, I am hesitant to throw you into the lot of the unthinking Left (leastwise, those that lose all critical thinking ability when mouthing points are presented).

  43. Curious April 4, 2021 8:36 pm

    Judges are to call balls and strikes, not to make policy or legislate from the bench and certainly not to lie through their teeth to spew holdings that are at odds with law and the factual record.
    What is and what should be in the judiciary are two different things. The sooner we collectively realize that the quicker we can move on to figure out how to best make lemonade out of lemons.

    Regardless of Ms. Cunningham’s “other” qualifications, I don’t think anybody questions that she has the type of qualifications that everyone who legitimately cares about the state of patent law wants. She has a technical degree. She clerked at the Federal Circuit. She is a practiced patent litigator. She even has a patent registration number at the USPTO (although whether she has prosecuted at all is unknown). One couldn’t really ask for much more.

    As for the “other” qualifications, they are neither qualifying or disqualifying in my book. However, they are a nod to the political party currently holding power in the executive office. One would hope that not every judicial nominee we see over the next 3 1/2 years has these “other” qualifications — again, because they are neither qualifying or disqualifying and requiring these qualifications would lead some otherwise qualified candidates not to be considered. That being said, at the moment, I’m not surprised (or concerned) that the current batch of political appointees reflect the politics of the person doing the nominating.

    What, to me, is more important is how Ms. Cunningham addresses the hot-button topics of the time. I also want to see if any other judges decide to hang up their robes over the next year or so. Wallach was on the wrong side of American Axle, so if Ms. Cunningham sees things differently, that is a plus (or at least to me). If we can swing another vote or two (with the retirement of judges), we could go from a 8-8 tie to as much as a 11-5 majority. If that happens, I would like to see the next Chief Judge (I believe Kimbery Ann Moore is slated to be next when Prost’s term ends in 49 days) create an en banc panel that gives us a decent framework to address 101.

    Something I just realized — once Cunningham is confirmed, there will be 6 woman and 6 men on the Federal Circuit.

  44. concerned April 5, 2021 7:32 am

    Per all of the above posts, the United States patent system lives or dies based on what judge retires, what judge is appointed, what judge(s) I draw, what political party is in place, etc.

    When do facts, evidence, Congressional black letter law, and other aspects of traditional legal settings come into play?

    The USPTO and their PTAB called my process, that happens to save State and Federal governments from making substantial Medicaid payments in error (not in dispute), insignificant post solution activity. Some of the erroneous payments are from fraud.

    My state, as well as others, are responsible to prosecute Medicaid fraud via the State Attorney General. Perhaps I should send defendants of alleged Medicaid fraud a copy of my patent prosecution and highlight that the same is just insignificant post (criminal) activity per of those wonderful people in the patent process.

    The author of the book, which my story was part of, pointed out how the USPTO hampers the goals and laws of their sister Federal agencies at the Social Security Administration and CMS.

    I do not know how patent attorneys wake up every morning and practice law in such an environment.

  45. Night Writer April 5, 2021 8:55 am

    >> requiring these qualifications would lead some otherwise qualified candidates not to be considered

    It is just offensive to think that people can understand innovation, science, and patents without a technical degree. Some can get along like Rader did if they really, really try and do remedial work to try and understand science and engineering, but the reality is that without a technical degree you simply are not qualified.

    And if you haven’t worked in patent law you are simply not qualified.

    There are thousands of examples of unbelievably stu pid things these judges on the CAFC have held because they have absolutely no clue about science.

    Full stop.

  46. Anon April 5, 2021 10:08 am

    Curious – I like the way that you phrased your view.

  47. Curious April 5, 2021 10:23 am

    Curious – I like the way that you phrased your view.
    Thank you. I value nuance but also the big picture. There is a bit of the good, bad, and the unknown in Cunningham’s nomination — I wanted to acknowledge all of that while still emphasizing that she undoubtedly has the qualifications for the position.

  48. ipguy April 5, 2021 12:32 pm

    @45
    “It is just offensive to think that people can understand innovation, science, and patents without a technical degree. Some can get along like Rader did if they really, really try and do remedial work to try and understand science and engineering, but the reality is that without a technical degree you simply are not qualified.”

    You just described the majority of patent litigators.

  49. B April 5, 2021 1:22 pm

    @ Night Writer ” Some can get along like Rader did if they really, really try and do remedial work to try and understand science and engineering.”

    Rader hired technical people to help him understand the technology. For instance, former USPTO Solicitor Nathan Kelley (a classmate of mine) was a technical advisor to Rader. Before that he was an examiner.

    Then again, I’ve seen ads from Reyna looking for technical people, but it apparently hasn’t helped much

  50. ipguy April 5, 2021 1:58 pm

    @42

    “I am hesitant to throw you into the lot of the unthinking Left”

    Just as I am hesitant to throw you into the mindless drone Right. Seriously, between all the people on the Left who accuse me of being on the Right, and all the people on the Right who accuse me of being on the Left, I have high confidence that I’m pretty much one of those many Centrists viewed as an enemy by anyone who can’t stand someone not agreeing with them 100%.
    I follow the spirit of Rule 1.3. There’s never any cause for ad hominem attacks or personal insults. It’s sad what public discourse has come to in this country, and that’s why so many forums have eliminated their comments sections. That’s why 99.9% of the time I avoid any posts where people are focusing on the politics more than the IP.

  51. AAA JJ April 5, 2021 3:25 pm

    “One would hope that not every judicial nominee we see over the next 3 1/2 years has these ‘other’ qualifications — again, because they are neither qualifying or disqualifying and requiring these qualifications would lead some otherwise qualified candidates not to be considered.”

    All qualified candidates will be considered. Political considerations being taken, of course.

  52. AAA JJ April 5, 2021 3:38 pm

    “Just FYI: The American Bar Association secretly declared that 14 of President Barack Obama’s nominees to the federal bench are ‘not qualified.’”

    You didn’t bother reading the NYT article that the Newsmax (Newsmax, lulz and lulz) article cited did you? Obama chose not to nominate any of the 14. So no, they weren’t “Obama’s nominees” as Newsmax (again, lulz upon lulz) characterized them. They were never nominated. But keep reading “Newsmax.”

    “How old is AAA JJ? Twelve?”

    If I’m 12, what age does that make your hero Drumpf? 5? 3?

  53. AAA JJ April 5, 2021 3:46 pm

    “It is just offensive to think that people can understand innovation, science, and patents without a technical degree.”

    No, it’s not.

  54. Curious April 5, 2021 4:04 pm

    “It is just offensive to think that people can understand [many of the nuances of] innovation, science, and patents without a technical [and legal] degree.”
    This is how I would have worded it.

  55. B April 5, 2021 5:05 pm

    @ AAA JJ “Obama chose not to nominate any of the 14.”

    Yes, but only after they were rated so badly — done in a fashion where no one could see. What an incredible and unprecedented lack of transparency.

    “If I’m 12, what age does that make your hero Drumpf? 5? 3?”

    I once sat at a table full of histrionic attorneys whining about Kavanaugh’s appointment to the Supreme Court.

    “He’s not qualified” they lamented. When I asked how many of Kavanaugh’s decisions were ever overturned, none could cite one.

    I then asked, “Can you name a Kavanaugh decision you don’t like, and why?” None could name a single case.

    Those people didn’t have opinions. Too intellectually lazy. They merely adopted the opinions of their favorite talking heads.

    Like those people, you don’t actually have an opinion. You’re too intellectually lazy for an opinion.

    @ ipguy “There’s never any cause for ad hominem attacks or personal insults.”

    Dude, you need to read your own posts. You make snarky insults, and when challenged slink away into silence. “Thank you for proving my point?”

    That said, you cheer on AAA JJJ and RTFMPEP. Pigs, mud, and stuff

    That’s called duplicity.

  56. B April 5, 2021 5:10 pm

    @ ipguy “That’s why 99.9% of the time I avoid any posts where people are focusing on the politics more than the IP.”

    Said the Jim Crow guy whining about Trent Lott on an issue 20 years old and having NOTHING to do with IP.

    Just saying

  57. AAA JJ April 5, 2021 5:42 pm

    “It is just offensive to think that people can understand [many of the nuances of] innovation, science, and patents without a technical [and legal] degree.”

    No, it’s not.

  58. Anon April 5, 2021 5:48 pm

    AAA JJ,

    All qualified candidates will be considered.

    Not true – eminently so, when the filter of ISMs is applied in the first instance.

    That’s kind of the major point here.

  59. RTFMPEP April 5, 2021 6:13 pm

    @56
    You’re still so bitter about how he done whupped you good, son.
    Just sayin’.

  60. AAA JJ April 6, 2021 7:57 am

    “Yes, but only after they were rated so badly — done in a fashion where no one could see. What an incredible and unprecedented lack of transparency.”

    From the NYT article that the Newsmax (lulz) article links to: “In 2001, Mr. Bush stopped sending the group names of prospects before he selected them, so the panel instead rated them after their nomination. In 2009, Mr. Obama restored the panel’s role in the prenomination selection process, which dates to the Eisenhower administration.”

    So the process of pre-screening nominees by the ABA was used by Eisenhower. And Kennedy. And LBJ. And Nixon. And Ford. And Carter. And Alzheimer addled brain Ronny Raygun. And Bush, Sr. And Clinton. Until Dubya didn’t like being told he was nominating unqualified hacks (remember Harriet Meyers?). But when Obama went back to using the process, it was “an incredible and unprecedented lack of transparency.”

    I wonder what all of those other presidents who used the process had in common that Obama didn’t have. It’s qwhite puzzling why you would object to his use of the process.

    “I once sat at a table full of histrionic attorneys whining about Kavanaugh’s appointment to the Supreme Court.”

    I find the five times he committed perjury and his clear lack of a judicial temperament to be far more disqualifying than any decision he made. But whatever.

    “Like those people, you don’t actually have an opinion. You’re too intellectually lazy for an opinion.”

    Says the guy who bases his opinion on a Newsmax (lulz) headline.

  61. AAA JJ April 6, 2021 7:59 am

    “Not true – eminently so, when the filter of ISMs is applied in the first instance.”

    Yeah. It’s amazing that Biden hasn’t even considered any white guys for positions in his administration.

  62. Anon April 6, 2021 9:31 am

    AAA JJ,

    Move the goal posts back – the point at hand is NOT “positions in his administration

    Maybe address the actual point that I presented. Or do you really feel that an application in a first instance of a filter of ISMs somehow STILL will have ALL candidates considered?

    I do not think that even a jaded examiner would attempt that “logic.”

  63. AAA JJ April 6, 2021 10:41 am

    He has 73 judicial spots to fill. So far he’s nominated 11. How about letting him announce the remaining 62 before barricading the door on your mom’s basement?

  64. Night Writer April 6, 2021 11:11 am

    AAA JJ:

    I have documented in detail how the lack of a background in science has resulted in absurd holdings by the CAFC and Scotus. I am not going to repeat them here but I have done that.

    AAA JJ April 5, 2021 5:42 pm
    “It is just offensive to think that people can understand [many of the nuances of] innovation, science, and patents without a technical [and legal] degree.”

    No, it’s not.

  65. AAA JJ April 6, 2021 11:31 am

    It’s quite a leap from “I have documented in detail how the lack of a background in science has resulted in absurd holdings by the CAFC and Scotus. I am not going to repeat them here but I have done that” to “It is just offensive to think that people can understand innovation, science, and patents without a technical degree.”

    The fact that you disagree with the court’s ruling doesn’t mean the judges didn’t understand the technology and the issues. You also seem to forget that in all of the cases that you documented, there was one side advocating for the result that the court reached. Does that mean they don’t/didn’t understand science, innovation, and patents?

    The idea that a technical degree is some magic potion is shared by many in our profession. I got my “technical degree” 32 years ago. It didn’t, and doesn’t, provide me with any more ability to understand science, innovation, and patents than somebody who got a degree in English lit or poli sci. Are you telling me that the bachelor of science I got 32 years ago makes me better able to understand innovations in pharmacology, blockchain, or quantum computing than somebody with a degree in economics or finance? Even if that were so, how much more understandable are any of those to me because I got a “technical degree” 32 years ago.

    Your position on this is absurd. And it’s getting more and more absurd by the day.

  66. Night Writer April 6, 2021 2:43 pm

    @65 AAA JJ

    It is not a matter of what the order of the court is but the way in which the order was determined.

    And to answer your question: Yes my science degrees enable me to understand blockchain, antennas, hydraulic systems, and so forth better than people with an English degree.

    It certainly is the case that there are many people like you that simply didn’t get much out of their education and have not spent 30 years continuing to update their education.

    Again, I am not going to take the time to repeat the reasoning in may CAFC and Scotus opinions that are simply absurd. One need no more than go back and read so of what Ginsburg wrote about computers. I’ve also taught a number of science courses as an adjunct professor. I’ve watched students grow from having an understanding like Ginsburg (about how a five year old understands science) to mature scientists.

    Please stop. Maybe you need to go back to the books.

  67. Night Writer April 6, 2021 2:55 pm

    And AAA JJ, I understand blockchain and gave a talk about how it works and all its weaknesses and strengths.

    Do you really believe an English major could appreciate blockchain? Be able to assess how hard it would be to break? Be able to assess how difficult it was to invent? Be able to assess the security risks? And so forth.

  68. AAA JJ April 6, 2021 3:15 pm

    “It certainly is the case that there are many people like you that simply didn’t get much out of their education and have not spent 30 years continuing to update their education.”

    I’ve spent the past 32 years continuing my education. And I’ve written applications for blockchain and machine learning and semiconductor devices and medical devices and ceramics and metallurgy and polymers and combustion and so forth. My technical degree touched on some of those areas, but I learned what I needed from the clients. They taught me the technology.

    “Do you really believe an English major could appreciate blockchain? Be able to assess how hard it would be to break? Be able to assess how difficult it was to invent? Be able to assess the security risks? And so forth.”

    Yes.

    Your attitude of “People who didn’t study science or engineering in undergraduate can never understand anything about science or engineering” is nonsensical. Completely nonsensical.

  69. Curious April 6, 2021 5:31 pm

    The idea that a technical degree is some magic potion is shared by many in our profession. I got my “technical degree” 32 years ago. It didn’t, and doesn’t, provide me with any more ability to understand science, innovation, and patents than somebody who got a degree in English lit or poli sci.
    I completely disagree there. Having a technical degree is more the facts and formulas that one learns. To earn a technical degree is most instances requires a way of thinking and a language that is unlike others. With these, having a technical degree provides one with a BS detector that allows the user to know when people are making $&1t up — particularly about technical matters.

    I’ll use American Axle as an example, in which the claims supposedly were directed to the abstract idea of Hooke’s law. I would imagine that 99% of people with a technical degree could look up Hooke’s law, recognize it for what it is, look at the claims and conclude that this is completely and utter BS. However, Judge Stark (out of Delaware) and multiple judges at the Federal Circuit bought what the defendant’s attorney was selling. I’m assuming that these judges are bright people. However, they didn’t have a sufficient technical background to recognize a massive whopper of a lie when it was presented to them.

    One of the things I was first introduced to in law school was argument by analogy. You can create some different fact pattern and apply the law to come up with some result (i.e., the analogy). This is useful tool to in evaluating the law by describing how the law works in a different set of circumstances (that might be easier to understand than the set of circumstances you are working with). Most people can come up with a set of different fact patters for contract law, criminal law, family law, whatever. However, when it comes to patent law, the analogies can involve fact patterns that are complete mysteries to non-technical people. If the underlying facts (either facts at hand or the facts of some hypothetical) are difficult to understand, the odds of one creating bad law goes up. One is less likely to realize how some formulation of the law leads to an absurd result in a different fact pattern.

    Personally, I know of people without technical degrees that have some very high knowledge in some very technical areas. However, when you scratch at that knowledge you realize that there isn’t much underneath and that if they are forced to discuss things at a deeper level they can struggle. Moreover, they are less likely to be able to port their technical expertise to different technical realms.

    Aside from having a firm grasp of the law, as a patent attorney, what I pride myself the most in is my ability to understand a huge variety of technologies — and do so quickly. It isn’t easy but I manage. That being said, there is a number of technologies that I wouldn’t touch with a 10 foot pole. Moreover, if I’m forced to read case law that touch upon these technologies, I’m oftentimes lost because the law depends upon the facts, and I don’t have a great understanding of the facts. With this in mind, I can only imagine the difficulty that someone (such as a judge) who has far less experience dealing with different technologies than I has in understanding case law that deal with these varied technologies.

    This difficulty reveals itself when I read decisions out of the Federal Circuit. It is hardly uncommon for me to read something in which I remark to myself, ‘this judge has no idea what is going on — if they didn’t they wouldn’t have made this statement.’

  70. Night Writer April 6, 2021 6:11 pm

    @68 AAA JJ
    Your attitude of “People who didn’t study science or engineering in undergraduate can never understand anything about science or engineering” is nonsensical.

    So you put quotes around something that I never wrote. Nice strawman there. Switch what I said to absolutes that can’t possibly be correct. I will take this as the smell of victory. Apparently you can’t admit you were wrong and instead decide to make up things.

  71. ipguy April 6, 2021 8:08 pm

    @69

    “It is hardly uncommon for me to read something in which I remark to myself, ‘this judge has no idea what is going on — if they didn’t they wouldn’t have made this statement.’”

    Is it the judge, the judge’s clerks, and/or the patent litigators making arguments to the judges and their clerks who have no idea what is going on? None of them are required to have a technical degree in any science or technology, and certainly not in the patent’s specific field of endeavor.
    At the end of the “garbage in/garbage out process,” patent prosecutors have to live with the consequences.

  72. B April 6, 2021 11:04 pm

    @ ipguy “Is it the judge, the judge’s clerks, and/or the patent litigators making arguments to the judges and their clerks who have no idea what is going on?”

    This is a good and fair question, but I believe, based on first-hand experience and many dozens of briefs I’ve read, it’s the judges who are lacking. I’ve never read a CAFC brief (from the PTO or a DC) and wondered “what the heck is this unholy device?”

    You should also head out to the CAFC on Madison Place for oral arguments as well. Some judges use this time exclusively to rage at and interrupt attorneys who are six words into responding to the judges’ questions. These judges can’t be corrected on any technical misconceptions b/c they can’t listen.

    Often during oral argument these judges are trying to pull admissions from attorneys. Failure to confess leads to more judicial rage.

  73. AAA JJ April 7, 2021 8:54 am

    “So you put quotes around something that I never wrote. Nice strawman there.”

    I paraphrased your ridiculous statement. Hence the quotation marks. If you disagree with my paraphrasing, please feel free to explain what you meant by, “It is just offensive to think that people can understand innovation, science, and patents without a technical degree.”

    “I will take this as the smell of victory.”

    You’re high on your own supply.

  74. B April 7, 2021 10:03 am

    @ AAA JJ “I paraphrased your ridiculous statement.”

    You put the statement at issue in “quotes,” which is a no-no if you are paraphrasing any statement, ridiculous or not.

  75. B April 7, 2021 10:24 am

    @ curious “However, they didn’t have a sufficient technical background to recognize a massive whopper of a lie when it was presented to them.”

    To be fair, I’ve seen examiner’s and APJs spew the same sort of pseudo-technical nonsense in their zeal to kill a patent they otherwise could not under 102/ 103.

    In the world of Alice, judges get to ignore what they want to. This isn’t the fault of the SCOTUS, however. This is purely Federal Circuit garbage that arose b/c most of the CAFC judges never read Alice or Mayo, or had a lick of common sense.

    Think about it. How long was if b/f a single CAFC judge agreed that whether something was “well-known, routine, and conventional” was an issue of fact that required an evidentiary basis?

  76. Curious April 7, 2021 12:26 pm

    To be fair, I’ve seen examiner’s and APJs spew the same sort of pseudo-technical nonsense in their zeal to kill a patent they otherwise could not under 102/ 103.
    So have I. But I have higher standards for a District Court or Federal Circuit judge than I do for an APJ or Examiner.

    Think about it. How long was if b/f a single CAFC judge agreed that whether something was “well-known, routine, and conventional” was an issue of fact that required an evidentiary basis?
    We don’t know when that argument was first made. Regardless, how can a judge with some non-technical degree even hope to have the slightest clue as to whether something was “well-known, routine, and conventional”? At some point, a judge has to use their innate sense to determine what is right and what is wrong. Surely, one would hope that opposing counsel would step in and point the judge in the right direction. However, if a non-technical judge is faced with dueling experts saying completely opposite things, what are they to do?

  77. Anon April 7, 2021 12:41 pm

    I care less about ‘form’ and more about the fact that AAA JJ is trying to move the goalposts and gaslight someone with whom he has a philosophical disagreement with.

    That’s straight up a Malcolm Mooney move.

    To attempt to play this off as the extreme and “absolutes” of ‘There can be NO ONE PERSON that does not have a technical degree who can understand innovation and science’ when it is beyond clear that the point being introduced is that there is a very real difference in mindset and training between a technical education and a liberal arts education.

    The addition by Curious cuts through the purposeful obfuscation (thank you Curious).

    This is yet again another example of how when a Liberal Left mouthing point is implicated, any and reasoning from AAA JJ goes out the window.

  78. B April 7, 2021 2:26 pm

    @ curious “ So have I. But I have higher standards for a District Court or Federal Circuit judge than I do for an APJ or Examiner”

    Prepare for disappointment.

    “ We don’t know when that argument was first made.”

    I made it a full year at the CAFC before Berkheimer was penned. Judge Hughes was absolutely offended at the idea despite his Enfish decision.

    “ At some point, a judge has to use their innate sense to determine what is right and what is wrong.“

    We’re going to have to disagree on this issue.

  79. AAA JJ April 8, 2021 8:22 am

    “To attempt to play this off as the extreme and “absolutes” of ‘There can be NO ONE PERSON that does not have a technical degree who can understand innovation and science’”

    So you’re paraphrasing my paraphrasing? And putting it in quotation marks? I thought that was a big no-no.

    “… when it is beyond clear that the point being introduced is that there is a very real difference in mindset and training between a technical education and a liberal arts education.”

    You really need to get out of your mom’s basement.

  80. Anon April 8, 2021 9:10 am

    So you’re paraphrasing my paraphrasing? And putting it in quotation marks? I thought that was a big no-no.

    Maybe pay attention — you know, like the first paragraph of the post that you snagged your sound bite from.

    Or were you in too much of a hurry to get to your mindless ad hominem?

    (bonus for you: the whole “basement” thing is passé, given the successful “Biden in the basement” campaign approach)

    Com’on, man.