Nomination of Kimberly Moore to CAFC

Both Patently-O and I/P Updates note that the nomination of Professor Kimberly Moore of George Mason University to the vacant seat (Clevenger) on the CAFC was sent to the Senate.

On March 23, 2006, Patently-O had mentioned a strong rumor that Kimberly Moore would be appointed.

Also on March 23, 2006, Peter Lattman at blogs.wsj had posted the following:

President Bush will nominate George Mason University law professor Kimberly Moore for a seat on the Federal Circuit court of appeals, according to the San Francisco Daily Journal (link unavailable). The Federal Circuit is the nation’s highest patent court. The news comes as a disappointment to intellectual property lawyers, says the DJ, many of whom had hoped Judge Ronald Whyte of the Northern District of California would get the nod. According to the DJ, Whyte is one of the most respected patent judges in Silicon Valley and was heavily supported by the Federal Circuit Bar Association, some of Silicon Valley’s largest companies and California senator Dianne Feinstein.

The story also points out that George Mason’s law school has deep ties to the Bush White House, and is apparently the only law school in the country with a chair endowed by the National Rifle Association.

Given the outcome, Lattman's post, in using the words "will nominate," seems to offer support for the idea that this decision was made in March 2006, right when the GMU basketball team was flying high in the NCAA.

Lattman's post also mentions the previous lobbying efforts on behalf of Judge Whyte. Brenda Sandburg had written on June 30, 2005:

At its annual meeting last weekend, the Federal Circuit Bar Association voted to support Whyte's nomination. And on Wednesday five Silicon Valley companies sent a letter to Sen. Dianne Feinstein, a member of the Senate Judiciary Committee, urging her to push for Whyte's appointment.

"Judge Whyte has honed his formidable judicial skills in the trenches resolving Silicon Valley high-tech disputes," said Edward Reines, a partner at Weil, Gotshal & Manges and newly elected vice president of the FCBA. "It is hard to envision a better judge to add to the Federal Circuit."

The Federal Circuit has never had a district judge among its ranks, which patent lawyers say is a shortcoming of the court. Such an addition would also be significant because the Federal Circuit has been criticized for failing to give deference to district judges in their patent decisions.

Mark Lemley, who is Kimberly Moore's co-author on Ending Abuse of Patent Continuations, was discussed in the June 2005 article:

A district judge "will be able to bring a more realistic view of how the Federal Circuit's legal rules will affect the practice of law," said Stanford Law School professor Mark Lemley. While some of the opinions the Federal Circuit has issued "seem perfectly reasonable in the abstract, in fact they create collateral consequences for litigators or trial courts that are unintended."

Harold Wegner is also mentioned in the June 2005 article:

"The No. 1 priority for the improvement of the Federal Circuit is to start with one and then get a stream of district court judges elevated to the court," said Harold Wegner, a partner at the Washington, D.C. office of Foley & Lardner. "Judge Whyte is superbly qualified and would be a tremendous boon for the system."

In the months between June 2005 and March 2006, something happened. One notes that Whyte is [USC Law] class of 1967, while Moore is [Georgetown Law] class of 1994, a difference of 27 years. Another factor might be geography; the June 2005 article mentioned:

Some members of the patent bar say Washington, D.C., insiders have often been appointed to the bench, while district judges have been overlooked. Judge Sharon Prost, the last appointee, had been chief counsel of the Senate Judiciary Committee. Judge Randall Rader also served as counsel to the Senate Judiciary Committee prior to his appointment, and Chief Judge Paul Michel was previously counsel and administrative assistant to Sen. Arlen Specter.

The citation in January 2006 by the USPTO to the Lemley/Moore BULR article in its notice of proposed rulemaking about continuing applications may have been a signpost on the road. The cite seemed anomalous for a number of reasons, one of which was the harsh treatment given in the Lemley/Moore BULR article to a paper in JPTOS by USPTO employee Robert Clarke, who was accused within the BULR article of making a mistake that Clarke never made. The Lemley/Moore BULR article then dismissed the conclusions of Clarke's JPTOS paper. Coincidentally, Clarke's paper had been motivated as response to a paper by Quillen and Webster, which appeared in the Federal Circuit Bar Journal, edited by Professor Moore. I emailed Professor Moore several times about the [false] statement in the BULR paper about Clarke, but got no response.

Long ago, someone did to me something that was directly analogous to what happened to Clarke. That is the prime motivation for my publishing papers in 86 JPTOS 568 (2004), 4 CHI-K. J. INTELL. PROP. 104 (2004), and 4 CHI.-KENT J. INTELL. PROP. 186 (2005). To this day, I have never met or spoken to Lemley, Moore, or Clarke.

As to patent law, the Whyte/Moore choice evokes Frost's The Road Not Taken. Best wishes to Professor Moore in her new arena.