Thoughts on Tiffany Cunningham’s Confirmation to the CAFC

Tiffany Cunningham was confirmed to the U.S. Court of Appeals for the Federal Circuit earlier this week, making her—incredibly—the intellectual property court’s first Black judge. Cunningham has been a patent litigation partner at Perkins Coie LLP in Chicago, Illinois since 2014, and prior to that worked in the Chicago office of Kirkland & Ellis LLP. She will replace Judge Evan J. Wallach, who announced in March that he would retire from active service and assume senior status as of May 31, 2021, after 10 years of service with the court.

Despite sometimes vocal criticism on the political right of President Biden’s promise to diversify the U.S. federal judiciary, Cunningham is widely considered to be a qualified choice. Every Democratic senator voted to confirm her, as well as Republicans including Marco Rubio (R-FL), Chuck Grassley (R-IA), Joni Ernst (R-IA), Richard Burr (R-NC) and Thom Tillis (R-NC).

In written responses to Tillis submitted in June, Cunningham acknowledged that, in her experience, motions to invalidate patents were filed less frequently pre-Mayo/Alice, and that there has been a “significant uptick in the number and the success” of such motions since those decisions. She also told Senator Chris Coons (D-DE) during her confirmation hearings that the area of patent eligibility law “deserves attention,” and made reference to the pending Supreme Court petition in American Axle v. Neapco.

Below are some thoughts from members of the IP community, and senators who voted for her, on what Cunningham’s appointment might mean for the CAFC long term.

Megan Carpenter, University of New Hampshire Franklin Pierce School of Law

Tiffany Cunningham’s appointment to the United States Court of Appeals for the Federal Circuit is a milestone for the court and for all those advocating for the diversification of the IP bar and its representatives. Judge Cunningham’s background will serve her well in this role; her experience on the technical side of IP in chemical engineering, combined with her decades of experience in complex patent litigation, make her an excellent choice. In particular, her experience working across disciplines, from pharmaceutical and biotech to computer science, automotive, and mechanical engineering gives her both a breadth and depth of experience that will benefit those who argue before her and those who are impacted by her decision-making.

As the first woman dean of a law school that focuses on intellectual property, I can say that representation matters. This is true especially for women and people of color, who comprise such a small part of the IP bar. Data from the American Intellectual Property Law Association (AIPLA) from 2017 note that only 1.8% of all IP attorneys are African American. Only 20% of all patent attorneys are women, and only 12.6% of all patent appeal cases argued before the Federal Circuit over the last decade were argued by women. Tiffany Cunningham’s credentials are phenomenal and will serve her well as we all navigate complex issues at the intersection of intellectual property and innovation. And as the first Black judge to be appointed since the Federal Circuit was created in 1982, her appointment will be inspirational to aspiring law students.

Statement of Senator Dick Durbin (D-IL)

This is a truly historic confirmation—Ms. Cunningham will serve as the first Black judge on the Federal Circuit. She will not only bring much-needed diversity to the bench, but she will bring impeccable credentials as well. I’m pleased my colleagues joined me in a bipartisan manner in support of Ms. Cunningham’s nomination.

Sangeeta G. Shah, Brooks Kushman

I’m elated to have a 20-year veteran patent litigator on the Federal Circuit bench, someone who intimately understands the unpredictability of the current patent landscape, in particular on the issue of patent eligibility, and can help bridge the current divide. Her chemical engineering background and experience with Hatch Waxman cases will undoubtedly be of great value to the bench and their patent docket. And, last but certainly not least, I’m thrilled that an African American woman with such impeccable qualifications will sit on the Federal Circuit, breaking yet another glass ceiling. I am hopeful that her confirmation will serve as a catalyst for change.”

Bridget Smith, Lowenstein & Weatherwax

I’m thrilled that Ms. Cunningham sailed through her Senate confirmation. Her credentialed expertise and deep knowledge of the law certainly set a lofty bar for future nominees. That she is also a Black woman is an exciting milestone, and I hope that the improvements to diversity on the appellate bench send a clarion call to law firms to improve the diversity of practitioners appearing before them. It is particularly encouraging that Ms. Cunningham has substantial, practical experience on both sides of the “v,” having represented everyone from large corporations to individuals, and knows the importance of applying the law evenhandedly. That said, it appears that Ms. Cunningham may have concerns about the proliferation of patent cases in the Western District of Texas and we may see increased activity from the Federal Circuit to derail Judge Albright’s efforts to grow his court’s reputation as a “patent-friendly” venue.

Statement of Senator Thom Tillis (R-NC)

I was proud to vote to confirm Tiffany Cunningham to the Federal Circuit. Ms. Cunningham will bring a wealth of experience to the bench, and I hope that as a Federal Judge she will take steps to bring clarity to our nation’s patent eligibility jurisprudence so that we can continue to be the world’s leading innovation economy.