Judge Lucy Koh Tapped for Ninth Circuit Alongside Seven Other Biden Nominees to Federal Bench

By Eileen McDermott
September 9, 2021

Judge Lucy Koh

Judge Lucy Koh

President Joe Biden on Wednesday nominated eight new judges for federal courts, including Judge Lucy Koh for the U.S. Court of Appeals for the Ninth Circuit. Koh has been a prominent figure in intellectual property (IP) cases in recent years, particularly due to her 2019 order finding that Qualcomm had engaged in unlawful licensing practices, which included her issuance of a permanent, worldwide injunction against several of Qualcomm’s core business practices.

IP leaders including retired Federal Circuit Chief Judge Paul Michel and law professor Kristen Osenga submitted amicus briefs in FTC v. Qualcomm detailing Koh’s legal errors in that ruling. The Ninth Circuit ultimately vacated her decision and reversed the injunction. Federal Trade Commission (FTC) Commissioner Christine Wilson said at the IPWatchdog Patent Masters Symposium in 2019 that Koh’s decision “scared” her.

Nonetheless, Koh has a distinguished career. She has served on the U.S. District Court Judge for the Northern District of California since 2010 and worked as an IP partner at McDermott Will & Emery LLP and as a senior associate at Wilson Sonsini Goodrich & Rosati. Prior to that, she spent seven years at the U.S. Department of Justice; served as an Assistant U.S. Attorney in the Criminal Division of the U.S. Attorney’s Office for the Central District of California from 1997 to 2000; as Special Assistant to the Deputy Attorney General from 1996 to 1997; and as Special Counsel in the Office of Legislative Affairs from 1994 to 1996. She received her J.D. from Harvard Law School in 1993 and her B.A. from Harvard University in 1990.

Biden also nominated two other judges to the Ninth Circuit: Justice Gabriel Sanchez of the California Court of Appeal, First Appellate District, and Judge Holly Thomas of the Family Law Division of the Los Angeles County Superior Court.

The remaining nominees are for California, Minnesota and New Mexico district courts. Judge Maame Ewusi-Mensah Frimpong is the nominee for the United States District Court for the Central District of California; Judge Katherine Marie Menendez is the nominee for the United States District Court for the District of Minnesota; Judge Jennifer L. Thurston is the nominee for the United States District Court for the Eastern District of California; David Herrera Urias is the nominee for the United States District Court for the District of New Mexico; and Judge Hernán D. Vera is the nominee for the United States District Court for the Central District of California.

This is Biden’s seventh round of nominees for the federal bench; he has now nominated 43 candidates to federal judicial positions.

The White House statement on the nominations said that the nominees “continue to fulfill the President’s promise to ensure that the nation’s courts reflect the diversity that is one of our greatest assets as a country — both in terms of personal and professional backgrounds.” The slate includes a number of “firsts,” such as a nominee who would be the first Korean-American woman to serve as a federal appellate judge; one who would be the first Black woman to serve on the Ninth Circuit from California; and a nominee who would be the only active Black woman district court judge in any of California’s four federal district courts.

The Author

Eileen McDermott

Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, and no stranger to the intellectual property world, having held editorial and managerial positions at several publications and industry organizations. She has acted as editorial consultant for the International Trademark Association (INTA), chiefly overseeing the editorial process for the Association’s twice-monthly newsletter, the INTA Bulletin. Eileen has also served as a freelance editor for the World Intellectual Property Organization (WIPO); as senior consulting editor for the Intellectual Property Owners Association (IPO) from 2015 to 2017; as Managing Editor and Editor-in-Chief at INTA from 2013 to 2016; and was Americas Editor for Managing Intellectual Property magazine from 2007 to 2013.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 11 Comments comments. Join the discussion.

  1. B September 10, 2021 11:18 am

    Biden could not possibly have picked a worse, more incompetent and foolish judge if he commissioned a special committee for the express purpose of picking bad judges.

    She was overturned two times last year alone b/c she’s incapable of reading statutes.

  2. Anon September 10, 2021 12:03 pm

    B,

    But, [your choice of ISM here]…

  3. Pro Say September 10, 2021 3:51 pm

    B: “statutes”

    Statutes?! Statutes!?

    Harrumph! We don’t need no statutes . . . statutes are for losers.

    Losers!

  4. B September 10, 2021 5:14 pm

    @ Anon

    I’m sure the ABA will give her a glowing recommendation and a backrub, and litigants will suffer for decades for a stream of idiotic decisions. The 9th Circus is about to be put on steroids.

  5. Concerned September 11, 2021 8:30 am

    I cannot read statutes either. Where do I find abstract idea, inventive concept and their definitions in s101?

  6. Night Writer September 13, 2021 6:39 am

    @4 B

    I am censured on here for saying it but I’ve read a number of Koh’s decisions going back almost 10 years. Terrible.

    Censured for saying that the main criteria for Biden is that you are a woman of color.

  7. Valutionguy September 13, 2021 11:03 am

    Night Writer,
    While you are partial correct that she punches all the diversity buttons….the primary qualification is that she is fully captured by the mindset that corporations should be able to innovate for free regardless of prior patent rights…i.e. the efficient infringement cabal led by her social pal Mark Lemley (who is married to the at one-time #2 IP executive at Google). Funny how these connections work….

    Her Qualcomm decision was typical judicial advocacy muddling up patent rights for nearly a decade…which is why the Google bunch is pushing her for the Appellate level.

    Note that nowhere in the press is the fact that she is the wife of one of the CA Supreme Court justices even mentioned….which I think might be appropriate to mention given the massive corruption in the top ranks of CA gov’t. Kinda like the fact that the former FDA Commissioner was married to the manager of the top biotech hedge fund isn’t newsworthy either… While Koh’s husbands’ position doesn’t disqualify her of course….her unabashedly political stances on IP (regardless of legal precedence) indicate she is unqualified for any judicial position…INCLUDING the one she CURRENTLY has…let alone the appellate level.

  8. B September 13, 2021 3:10 pm

    @ Night Writer “Censured for saying that the only criteria for Biden is that you are a woman of color.”

    There – fixed it.

    @ Valuationguy “Her Qualcomm decision was typical judicial advocacy muddling up patent rights for nearly a decade…which is why the Google bunch is pushing her for the Appellate level.”

    Good call. One forgets the undue influence of out tech overlords

  9. Anon September 15, 2021 6:54 am

    An interesting ‘anti-Koh’ rant (from iwasthere on another blog):

    https://seton.substack.com/p/bidens-ninth-circuit-nominee-was

  10. B September 15, 2021 6:38 pm

    @ Anon

    Wow. Brutal.

    Fwiw, I agree with little Glen Greenwald has to say, but his commitment to honest and free journalism is unmatched. Let’s hope Greenwald doesn’t sell substack.

  11. Night Writer September 16, 2021 10:41 am

    The sad thing is that we can expect more of this from Biden.

    The sad thing is what is driving politics is corruption and their attitude is that they will do some stuff for the good of all but need to keep their donors (and benefactors in getting rich) happy. Thus, goodbye patent system. The Ds will end patent protection in any real sense. It will be exactly what Google/Apple want it to be. Just reality.

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