“Stark will have to live up to the legacy of Judge O’Malley, who has gained a reputation for writing decidedly pro-patent opinions and likely will be missed by the IP community.”
Judge Leonard Philip Stark was confirmed by the U.S. Senate yesterday to be the next judge on the U.S. Court of Appeals for the Federal Circuit, replacing Judge Kathleen O’Malley. O’Malley announced in July of last year that she will officially retire on March 11, 2022.
Stark was confirmed by a vote of 61-35, which is reportedly one of the most bipartisan votes so far during President Joe Biden’s administration.
Stark was nominated in November 2021. He has served as a judge on the United States District Court for the District of Delaware since 2010 and was Chief Judge for the District of Delaware from July 2014 to June 2021. He also served as a magistrate judge for the district of Delaware from 2007-2010 and as an Assistant United States Attorney in the United States Attorney’s Office for the District of Delaware, where he worked in both the criminal and civil divisions. He worked in private practice between 1997 and 2001 at Skadden, Arps, Slate, Meagher & Flom LLP, and served as a law clerk for Judge Walter Stapleton on the United States Court of Appeals for the Third Circuit from 1996 to 1997.
The Senate Judiciary Committee approved Stark’s nomination by a vote of 16-6 last month. He had strong support from Senator Chris Coons (D-DE), who said he has “tremendous experience as a district court judge,” and has presided over thousands and thousands of patent cases, making him ideal for the spot.
During Stark’s confirmation hearings in December, Senator Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) asked him about his approach to deciding cases, which Stark explained involves starting with the text to see if it is “unambiguous,” then moving to binding Supreme Court and Court of Appeals precedent if there is ambiguity. If that still doesn’t answer the questions, Stark said he may look to other non-binding circuits, and even persuasive opinions from district court judges. “If all of that doesn’t answer the question, then I will turn to other canons of statutory construction and that could include consideration of legislative history.”
When Coons asked Stark how his background will help him on the CAFC, Stark replied that he will bring with him the recognition of how challenging it is to put together a reviewable record in a patent case. “The technology is always complex, the facts are very challenging. Patent litigators often disagree with each other, so I estimate that in a typical patent case that goes to trial I make many hundreds of decisions, or even more than 1,000, and typically only a handful of those issues get appealed to the Federal Circuit, so I’ll bring an understanding of the context in which those issues arise.”
Stark will now be the only judge on the CAFC with trial court experience. He will have to live up to the legacy of Judge O’Malley, who was confirmed to the CAFC on March 10, 2010. She was nominated by President Barack Obama to succeed Alvin Schall, and 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.
This is Biden’s second Federal Circuit nominee to be confirmed. He nominated Tiffany Cunningham in March of 2021, and she was confirmed to the court in July. Cunningham replaced Judge Evan J. Wallach, who retired from active service and assumed senior status on May 31, 2021, after 10 years of service with the court.