For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Monday, 26 May 2014

Chief Judge Rader leaves his US Patent Chiefdom behind following ethical breaches

It surely can't be true!
Merpel, who rarely raises much of a long eyebrow for IP celebrity gossip, was forced off her cashmere-clad bed to check that the news she heard on Friday was true.  Surely Chief Judge Randall R Rader of the US Court of Appeals for the Federal Circuit (CAFC) hadn't really just resigned from his role as the head of the CAFC.  But as each email and news alert was displayed across her screen, the astonishing news was confirmed.  On Friday, Chief Judge Rader wrote a letter to his 18 CAFC colleagues in which he stated:
"I have come to realize that I have engaged in conduct that crossed lines established for the purpose of maintaining a judicial process whose integrity must remain beyond question.  It is important to emphasize that I did not and would never compromise my impartiality in judging any case before me.  But avoiding even the appearance of partiality is a vital interest of our courts, and I compromised that interest by transgressing limits on judges' interactions with attorneys who appear before the court.  I was inexcusably careless, and I sincerely apologize."
This emphatic language was as a result of an email that, according to the Wall Street Journal, he had sent to Edward Reines at Weil, Gotshal & Manges LLP.  In this email Chief Judge Rader had reported a conversation that he had with another member of the court who had "praised the attorney's performance" and also included the judge's own praise.  Chief Judge Rader had also encouraged the recipient to show the email to others.  In retrospect, the judge recognized that the email constituted a beach of the ethical obligation not to lend the prestige of the judicial office to advance the private interests of others.

Chief Judge Rader
In his letter the judge also referred to having to recuse himself from previous cases.  A few weeks ago, Chief Judge Rader recused himself from two cases in which Edward Reines was appearing-- one for Microsoft and another for Medtronic.  The case concerning Microsoft brought by DataTern Inc (which for all ostensible purposes looks like a Patent Assertion Entity) was decided partially [not a good choice of word, thinks the IPKat. Merpel should have written 'in part' ...] in favour of Microsoft and SAP.  Judge Rader wrote a dissenting opinion.  A month later, the CAFC reissued its decision, excluding Rader's dissent and noting he had been recused from the case.  Whether these events are the main cause of his resignation can only be speculation.

Chief Judge Rader has been on the court for almost 24 years, having been appointed by President George H. W. Bush way back in 1990.  He became Chief Judge in 2010.  His resignation will become effective on 30 May 2014, after which he will remain on the court as a circuit judge. Sharon Prost, who is part of the 18-judge court, will replace him as Chief Judge.   With a background in labour law, Judge Prost was appointed by Dubya in 2001.

Her eyes may disguise it, but Merpel
is saddened by the latest DC news
Merpel, having repeatedly been told that her big cat eyes gave the game away, has long since repressed any emotion. However, she had a momentary lapse when reading this news.  DC loves scandal.  Indeed a whole show with the same title is currently a huge hit in the US.  This latest news is not the first and definitely not the last ethics scandal -- whether purposely engineered by opponents or not -- which will see a  respected figure fall wholly or partially from grace.  Over the coming days, there will undoubtedly be countless further commentary and speculation about how these events unfolded and the lessons that need to be learned.  However, Merpel is not alone in the IPKat team in hoping that what may have been a lapse of judgment will fade into history, while Chief Judge Rader's work while Chief Judge will  remain in the forefront of the public's memories.  While Chief Judge he was a vocal proponent of effective IP systems (notably patent law at a time of ill-informed scrutiny) and global coordination (if not harmonisation, see the Kat's numerous Rader stories here).  He was/is an engaging speaker who, throughout a pretty punishing schedule of international outreach trips and speaking-engagements, energized IP students and seasoned practitioners, alike (albeit his sung Eagles' tributes during IP presentations could grate on some nerves).  Nevertheless, Merpel hopes that Chief Judge Rader will continue his work on the bench and his globe-trotting IP missions so that, with the IPKat's reporting in tow, this episode can be relegated to a distant memory.

3 comments:

Anonymous said...

Perhaps Radar's fault was to push the system too hard to change. Reminds me of some of the judgments of the UK judge Hugh Laddie which were imaginative and interesting but destined to be reversed on appeal. We need such people, but they also cause waves and ruffle feathers.

Anonymous said...

This is now turning into the bigger issue of whether the patent bar is too close to the Federal Circuit judges, resulting in a pro-patentee bias. There is even talk of breaking up the Federal Circuit. If that happens Judge Radar will really have gone out with a bang.

Anonymous said...

The talks of breaking up the CAFC are nothing more than the usual rants from the usual suspects seeking a weaker US patent system so that infringers can be less concerned with violating patent rights.

The CAFC will not be broken up. There are NO serious talks to this effect, and NO serious talks even being contemplated by those who would make such a decision.

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