Second CAFC Judgeship Opens as O’Malley Retirement Announced

“This is not good news for those who support a strong patent system. Judge O’Malley has consistently been on the pro-patent, pro-innovation wing of the court. Her decisions have attempted to interject much needed predictability.” – Gene Quinn

Judge Kathleen O’Malley

According to U.S. Courts and as reported by IPLaw360 earlier today, U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Kathleen O’Malley announced on July 27 that she will retire, leaving a vacancy on the court as of March 11, 2022.

O’Malley’s announcement means that Biden will get a second nominee to the United States’ top IP court. Tiffany Cunningham was nominated by President Joe Biden earlier this year to succeed Judge Evan Wallach and recently was confirmed by the Senate.

O’Malley was confirmed to the CAFC on March 10, 2010. She was nominated by President Barack Obama to succeed Alvin Schall. She previously served on the United States District Court for the Northern District of Ohio. She has gained a reputation for writing decidedly pro-patent opinions and likely will be missed by the IP community.

From 1985-1991, O’Malley worked for Porter, Wright, Morris & Arthur, where she focused on “complex corporate and commercial litigations, including intellectual property, securities fraud, trade secrets, shareholder’s rights and large-scale coverage disputes,” according to her biography from the Northern District of Ohio.

From 1983-1984, she was an associate at Jones, Day, Reavis and Pogue, with “the majority of her work centering on intellectual property litigation.”

IPWatchdog Founder and CEO, Gene Quinn, said the announcement is “not good news”:

While I wish Judge O’Malley well, and she certainly has earned retirement, this is not good news for those who support a strong patent system. Judge O’Malley has consistently been on the pro-patent, pro-innovation wing of the court. Her decisions have attempted to interject much needed predictability.

This will give President Biden a second appointment to the Federal Circuit. While his first selection seems highly qualified by any measure, so far, the Biden Administration polices – to the extent there have been policies – have trended toward a position antagonistic of intellectual property ownership, which has been concerning.

President Biden will likely have the opportunity to completely remake the Federal Circuit. His pro-patent supporters need to urge him to appoint individuals who believe in the patent system.

Quinn was referring to Biden initiatives such as the recent  Executive Order on Promoting Competition in the American Economy, which many view as unnecessarily vilifying IP rights in certain areas in an effort to improve the competitive landscape.




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Join the Discussion

9 comments so far.

  • [Avatar for B]
    July 29, 2021 09:11 am

    @ Night Writer

    You just nailed O’Malley

    She’s very unlikely to personally write Taranto-like tripe, but she signs on to Taranto to-like tripe all the time.

  • [Avatar for Night Writer]
    Night Writer
    July 29, 2021 05:44 am

    The reality is that O’Malley is OK. She is practical minded and not a judicial activist. But she has no technical background and doesn’t really understand patent law or science. And she goes along with the likes of Taranto too often.

    It illustrates how bad the judges are on the CAFC that O’Malley is considered one of the best.

  • [Avatar for Model 101]
    Model 101
    July 28, 2021 10:18 pm

    Your Honor –

    Please stay!!!

    America needs you.

  • [Avatar for ipguy]
    July 28, 2021 05:37 pm

    It’s probably asking too much to hope that someone with actual patent prosecution experience and a reg. number would even be nominated in this day and age.

  • [Avatar for Pro Say]
    Pro Say
    July 28, 2021 03:38 pm

    Judge O’Malley is one of the principled giants of the judiciary.

    A giant.

    Unless she has a change of heart (for the good of America, please reconsider, Your Honor — at least until SCOTUS or Congress returns patent eligibility to all areas of innovation), this is indeed bad news for our country.

    The FAANG cabal rejoices (behind closed doors, of course).

  • [Avatar for concerned]
    July 28, 2021 03:05 pm

    My test for the next appointment to the CAFC:

    1). A customary, usual and well understood process means at least one person on Earth has used the process, true or false?

    2). If everyone is in agreement that the patent application meets the letter of the law as it has been written by Congress, a judge’s opinion overrides Congress’ black letter law, true of false?

    3). A process solves a problem that has been in existence since the beginning of time, not solved by hundreds of thousands of attorneys who also have law degrees just like a judge, and also not solved by a substantial number of experts and working professionals, has an invention occurred, true or false?

    4). As a judge, would you be suspicious of USPTO personnel who change the reason for rejection on one prosecution as often as need be, true or false?

    5). Do facts and hard evidence matter in a legal setting, true or false?

  • [Avatar for Curious]
    July 28, 2021 12:49 pm

    Her retirement date is set for March 11, 2022? That is a LONG time from now. Who knows, maybe she is interested in making some good law between now and then.

    One can only hope.

  • [Avatar for Valuationguy]
    July 28, 2021 12:33 pm

    This is REALLY bad for patent owners…considering that we have the question mark that Tiffany Cunningham is in her support of patents, the now definite subtraction of O’Malley’s support of patents, and the upcoming loss of the 94 year old Newman (who knows more about patent law than all her CAFC colleagues combined imo)


  • [Avatar for Anon]
    July 28, 2021 12:17 pm

    Having met the good Judge in person (outside the courtroom) several times, and evaluating her reasoning in her decisions, I sadly concur with Gene’s views.

    Thank you for your service, Judge O’Malley. You will be missed.