Judge Richard Linn, First and Foremost a Patent Attorney

Judge Linn (R) with Judge Chen (L) at the AIPLA Meeting on October 24, 2014. Chen was confirmed as Linn’s replacement when Linn took senior status on the Federal Circuit.

On December 9, 2014, the Intellectual Property Owners Education Foundation will host one of the best events of the year. Each year at this banquet and awards ceremony the IPO recognizes the National Inventor of the Year, who this year will be Dr. Hugh Herr, the inventor of bionic prosthetic devices. Today, however, the purpose of this article is talk about the recipient of the 2014 Distinguished IP Professional Award – Judge Richard Linn of the United States Court of Appeals for the Federal Circuit.

Each year for the past several years the IPO has recognized one distinguished IP professional. According to the IPO Award is given to an individual who has demonstrated extraordinary leadership in the IP community and a lifetime commitment to invention and innovation. This year, the recipient of this lifetime achievement award is Judge Linn. I have gotten to know Judge Linn a bit over the past several years, and have admired his decisions for years. In my opinion it is hard to image anyone more qualified or deserving of this recognition than he is.

Judge Linn has seen the industry from a variety of vantage points through his distinguished career, and in so many different ways he is one of us. He started his career at the United States Patent and Trademark Office like so many others have – as a patent examiner. When I spoke with him on Monday, October 27, 2014, regarding the IPO recognizing him with the Distinguished Professional Award, he told me: “first and foremost I consider myself a patent attorney.” This is no doubt what distinguishes him and why so many other patent attorneys have nothing but praise for him.

Judge Linn is one of only a very small group of federal judges who are patent attorneys, and he has been a patent attorney for nearly 50 years. “When I started in 1965, if you were a patent lawyer or an admiralty lawyer it was like you had leprosy. The rest of the bar didn’t know what you did and they didn’t want to know what you did,” Judge Linn told me.

Judge Linn went on to tell a story about how one Judge in Virginia had a particular disdain for patent attorneys. Judge Linn was told when he was being sworn in that if the Judge presiding over the motion found out that he was a patent attorney it would not be good. Well, that Judge did find out and Judge Linn told me that he quickly found himself assigned a felony drug case right after being sworn in so he could “handle a real case,” in the words of the unnamed Virginia Judge who had a dim view of patent attorneys. Given the importance of patents today it is hard to imagine a time when patent attorneys were thought to not be real lawyers, but lucky for us Judge Linn not only persevered, but he succeeded at an extremely high level.


At one point during our conversation our discussion turned to the Federal Circuit generally speaking, and then to whether he thought it might be useful to have more Judges on the Federal Circuit who are patent attorneys. His response was that he did not think the Court would be as vibrant if everyone had the same background. I pushed back a little and observed that he was one of the few Judges who had ever given advice to clients about a patent matter. I wondered whether Judges who had been forced to make sense of cases and statutes as lawyers giving advice might be better as Judges. To this Judge Linn explained that he thinks about how attorneys can make sense of decisions and advise clients a lot. “Having experience working with inventors has been very beneficial; it very often runs through my mind,” Linn explained.

Judge Linn in chambers on Feb. 8, 2013.

This theme reemerged later when we talked generally about computer implemented innovations. He explained that wrestling with patent eligibility as it applies to innovations that require machine intervention “is a very complex issue,” which is made more complicated when you try and rationalize opinions from the Supreme Court. “I have great difficulty rationalizing the Supreme Court’s opinions in Flook and Diehr, and in many regards I think those decisions are irreconcilably in conflict.”

During our conversation I specifically mentioned Judge Linn’s panel decision in Alice v. CLS Bank, which I personally think is the seminal thesis on the patent eligibility of computer implement inventions. He explained that he was trying to come up with practical, clear guidance for the bar, keeping in mind what he would tell clients, and trying to make sense of the state of the law. Judicial decisions certainly do need to be translated in a coherent way so clients can arrange, or rearrange, their affairs. Judge Linn considering that as he writes and decides cases no doubt explains how and why his decisions are so crisp, clear and informative, even if we don’t always agree.

As the conversation turned away from the panel decision in Alice I asked whether he thought that the en banc decision was a low point for the Court. Judge Linn explained that he wasn’t sure he agreed with former Chief Judge Rader, who characterized Alice as one of the lowest moments he experienced while on the Federal Circuit. “I don’t look at it as a low point. I look at it as an indication of the complexity of the issues,” Linn said. He went on to explain that the Court was “trying to resolve this complex issue in a way that made sense but reflected the precedent we had before us from the Supreme Court. In the end we just couldn’t agree. We got to the point where we recognized that the Supreme Court would have to give us the answer.”

As our conversation progressed we reached a point where we generally discussed public sentiment toward the patent system. Judge Linn explained that he thought something of a distorted view was being painted because software is not the only category of innovation being pursued by inventors. This led into an extremely passionate case for the patent system. Judge Linn told me:

“Think about advances in metallurgy where your car runs for 100,000 miles and it is just getting broken in… the quality of products you can buy, the ability of companies to manufacture all of the fantastic products we enjoy and how you can buy so many sophisticated high quality things at very low prices… it is because people are inventing things and the patent system plays a role in that. Companies, even big companies, rely on the fact that they can protect all this innovation. I worry tremendously that the media attention on the activities that tend to be distortive causes people to lose sight of the fact that a vast majority of economic activity here and around the world happens because patent protection is available. We need a system that works, we need a Patent Office that works, perhaps better than it does now… it takes too long, patents issue with claims that aren’t as clear as they should be. Patents take too long to litigate… hopefully we will get a better handle on these sorts of things. But the worst thing that can come out of this media hype is a public perception that the patent system is broken and we don’t need it any more. That is a huge mistake.”

Judge Linn would go on to say: “If instead of addressing only the hot button issued pressed by those with special interests, I’d much rather if Congress were to step back, move away from the lobbyists for a while and enlist the aid of some very sophisticated, knowledgeable patent folks to think through this patent eligibility issue and come up with some thoughtful legislation… that would avoid a lot of grief for a lot of people.”

I’m sure I won’t be the only one who would love for Congress (and the Supreme Court) to listen to Judge Linn. Yet even as Judge Linn says these things and writes decisions that should be mandatory reading for anyone interested in learning patent law, he has always struck me as an incredibly humble guy who is largely uncomfortable with all the nice, and deserving, things that people in the industry say. He acknowledged that he does get uncomfortable at times, and that he was surprised and very moved by this IPO recognition.

Left to Right: Federal Circuit Judges Lourie, Linn and Clevenger, taken October 24, 2014 at the AIPLA annual meeting.

Judge Linn told me that the way he approaches his job is to keep an open mind and realize that he doesn’t have the right answer for everything. He also joked that his wife helps keep him grounded when necessary, which lead to us taking a moment to chat about our very supportive wives. It was a conversation you could have had with a co-worker, your best friend, a member of the family. Judge Linn is easily one of the most knowledgeable and best Judges to ever serve on the Federal Circuit, and he is a nice guy that you can’t help but like and enjoy chatting with.

As our conversation turned back to the law Judge Linn went on to tell me: “I have always tried to keep my feet on the ground and tried not to let the office I hold go to my head. What we do as judges is very significant and a very heavy responsibility, not just to the parties in front of us, but we are making statements that have broader implications that reflect on the rule of law.” He repeated to me the heavy responsibility he feels because “without the rule of law there is chaos.”

Judge Linn is a real and genuine person, a great believer in the patent system because he first hand knows it works for innovators. He has long been a friend to patent groups and a mentor to many young attorneys, and has been the driving force in creating intellectual property based Inns of Court throughout the U.S. Today there are twenty-two Inns in all that focus on IP, with one in Tokyo. Three additional cities will have Inns added soon. The focus of the Inns is to enhance civility, ethics and professionalism.

In short, if you were going to set out to describe the experience, knowledge and temperament of a Judge you would wind up describing Judge Linn. After a distinguished career as a member of the patent bar he became a Judge, and even now in senior status continues to influence patent law and the bar through his decisions and public service to the industry. It is hard to imagine a more worthy recipient of this fine award.


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