“The incongruity in the relief seemingly sought by Chief Judge Moore’s complaint is most concerning. Is Judge Newman not competent to remain a judge at all? And if not, why would her accepting Senior Status satisfy Moore?”
IPWatchdog has learned from several sources this week that U.S. Court of Appeals for the Federal Circuit (CAFC) Chief Judge Kimberly Moore has filed a judicial complaint against Judge Pauline Newman under the Judicial Conduct and Disability Act. According to those who have seen the complaint, Moore is claiming she has probable cause to believe that Newman is unable to effectively discharge the duties of her office.
Sources tell IPWatchdog that Chief Judge Moore primarily makes two separate allegations against Judge Newman. First, that Judge Newman is slow to issue opinions, which affects the administration of justice. Second, Moore has apparently heard stories from colleagues and others at the court that cause her to have concerns about Judge Newman’s overall ability to serve.
Numerous staff and colleagues with knowledge of the complaint filed against Newman have contacted IPWatchdog to both confirm the filing of the complaint and to vehemently oppose the allegations being made about Judge Newman’s competence.
Notwithstanding these concerns relating to Judge Newman’s competence, IPWatchdog has learned that Chief Judge Moore was willing to resolve her grievance with Newman if she agreed to take Senior Status. Sources tell IPWatchdog that Judge Newman refused to consider Senior Status, which led Chief Judge Moore to file a complaint under the Judicial Conduct and Disability Act challenging Newman.
If true, Moore’s willingness to accept Newman as a Senior Judge raises very serious questions. If Judge Newman has really reached the point where she must be removed from office, why would a move to Senior Status be an appropriate remedy? Senior Judges still hear cases and typically carry one-third the case load of an active judge. So, why would a reduced caseload be an appropriate remedy if Chief Judge Moore has probable cause to believe Judge Newman is no longer mentally or physically competent?
The apparent charge that Judge Newman is slow to issue decisions is hardly a new complaint. I have long heard rumors about the need to cajole Newman into issuing decisions more quickly, so this seems to be a historic institutional problem rather than anything that has to do with her mental or physical fitness to serve. So, why, now, has it risen to the level of grounds for removal from office?
Still, the incongruity in the relief seemingly sought by Chief Judge Moore’s complaint is most concerning. Is Judge Newman not competent to remain a judge at all? And if not, why would her accepting Senior Status satisfy Moore? Some familiar with this unfortunate episode tell IPWatchdog on condition of anonymity that they wonder whether there is some other agenda. If Judge Newman were to voluntarily assume, or involuntarily be forced into, senior status there would be an immediate opening on the Federal Circuit, and plenty of time for the Biden Administration to fill the vacancy. Some have expressed concern to IPWatchdog that an immediate opening on the Federal Circuit that can be filled by the Biden Administration may be the end goal. While this motivation seems far-fetched, attempting to force out Judge Newman in this fashion seems unusual and likely to set up an ugly and embarrassing battle.
Regardless of the end goal, timing or incongruity of the remedy apparently sought, this entire episode will no doubt come as a shock to everyone who has read Judge Newman’s recent dissents. Newman has filed dissenting opinions in at least two recent cases that show no signs she is suffering from any disability. Earlier this month, she dissented from the majority’s holding that that SAS Institute, Inc. failed to establish copyrightability of its asserted software program elements, arguing the ruling “contravenes the Copyright Act and departs from the long-established precedent and practice of copyrightability of computer programs” and that it represents a “far-reaching change.” And in another dissent filed in late March, she disagreed with the majority’s decision to uphold Universal Electronics’ patent claims, opining that the claims would have been obvious. These dissents are classic Newman dissents, do not read as if they were written by law clerks, and do not show signs of decline or disability, only adding further intrigue and speculation into what is really going on at Madison Place NW.
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31 comments so far. Add my comment.
Michael ShoreApril 15, 2023 12:41 pm
The Federal Circuit has become an infringer friendly, anti-patent court. If Newman is removed, President Biden will appoint whomever Google tells him to appoint, another anti-patent judge. Judge Newman believes in patents. If she is competent enough to serve until President Biden is gone, I hope she is able to fight off this effort to oust her. The Fed. Cir. needs judges who believe in patents. There are not many left.
Citrus citrusApril 14, 2023 03:25 pm
The outcome will likely be that Newman stays & we get an additional judge – Gene should be happy about this unless all he cares about is whether Biden gets an appointment…
If her disability is found to exist by the Judicial Council they will certify it to the president under 28 U.S. Code § 372(b) and while she cannot be dismissed due to lifetime appointment, she will become junior to the other judges on the Federal Circuit bench and they will appoint a new judge. Then she can dotter on with her reduced docket while the court resumes full business.
This has shades of Sen. Feinstein’s situation written all over it – elderly civil servants who do not want to retire come hell or high water. Expect this to happen more and more as the older generation cling to power.
One of my cases, worth about 20 million to my client was assigned to a senior judge who forget how Rule 4 worked for serving foreign defendants. Thankfully a response to the OSC plus a courtesy call to the clerk’s office about her error solved that problem with much less embarrassment to the bench & delay to my client. Imagine if she had stuck to her guns and we had to appeal it – would have taken years. This is why walking dinosaurs should not be on the bench. It costs the tax payers money and delay.
ABCApril 14, 2023 02:18 pm
Here is a link to the complaint if anyone is interested – https://cafc.uscourts.gov/wp-content/uploads/March%2024,%202023%20Order.pdf
Urvashi BhagatApril 14, 2023 01:45 pm
Judge Newman issued a VERY POOR decision in 2018 on §§ 101 and 102 excising numerous limitations from 55 claims, disregarding 100% of the evidence of poorly understood factors, and OBSTRUCTED VERY IMPORTANT INNOVATION that could mitigate chronic and infectious disease burden. See links below. Ramifications of that bad decision are still reverberating. So I can’t say that Judge Newman has been a good judge.
Doreen Y. TrujilloApril 14, 2023 01:11 pm
“I’m conflicted. Newman’s writings in recent times often make sense, and usually eviscerate her majority panel members, e.g. Dyk, but she seems to have reduced herself to dissents (not that there is no room for those).” — Tom Wright
I am not sure how a judge “reduces herself” to writing dissents. There are 3 judges on a panel. If two agree and one does not, should she not be able to write a dissent to explain why?
Model 101April 14, 2023 12:50 pm
I wuv both Newman and Moore. Problem is 95 is incurable.
This is a pure judgement call.
Many kisses to both judges from me.
AnonApril 14, 2023 11:03 am
Mr. Ennis, ESQ., “Lawyers that comment publicly on a federal judge’s “ulterior motives” are unethical. None of us have read the complaint (assuming that there even is one).”
There is no such ‘ethical’ bar about the public comments here.
Quite in fact, squelching a healthy public discussion shades MORE to the unethical side, as such prevents our ability to strive for protection of the legal system. Your view invites clandestine activity and corruption.
Judges do NOT get a free pass, a “code of black” (mirroring a police “code of blue”).
MoocowApril 13, 2023 09:18 pm
@ TomWright: “She is 95 and that is simply a problem.” Seriously? I’m sure you didn’t mean that, did you?
Richard P. Ennis, Esq.April 13, 2023 07:44 pm
Lawyers that comment publicly on a federal judge’s “ulterior motives” are unethical. None of us have read the complaint (assuming that there even is one).
Patricia PriorApril 13, 2023 07:22 pm
There is nothing new about Judge Newman being slow to release opinions. It was the same situation when I clerked for Judge Smith at the same time Nancy Linck clerked for Judge Newman. Her opinions are always well reasoned, and although she is often in dissent, she’s more often correct than the majority.
Judge Rich was 95 when I was at a conference with him (and Judge Newman) in Italy in 1998. He was as sharp as ever, and no one suggested he be removed.
I see no reason for her removal based on her opinions.
As others have pointed out, the idea of having her go senior makes no sense if Judge Moore doesn’t think she’s competent.
Tom WrightApril 13, 2023 01:42 pm
I’m conflicted. Newman’s writings in recent times often make sense, and usually eviscerate her majority panel members, e.g. Dyk, but she seems to have reduced herself to dissents (not that there is no room for those).
Good clerks write good opinions. But they aren’t judges.
She is 95 years old, and that is simply a problem. No way to keep up in her job without a lot more resources than normal. We all want to think that when we get old we will have no issues. That makes no sense
I fear she is afraid of letting go; that it will tarnish the unbelievable legacy she has created.
I pray she will appreciate what she has done and understand she does not have to die on the Court. The work is done.
But I fear she is going to fly it into the ground. Moore is probably right.
Pro SayApril 13, 2023 12:47 pm
Ridiculous. Unjustified. Embarrassing. Shameful.
Though I occasionally (very rarely) disagree with her decisions, Judge Newman’s decisions nevertheless remain stellar.
The CAFC judges who should instead be removed are all those who are crippling American innovation by refusing to properly cabin the limitations on patentable subject matter as the Supreme Court instructed.
THOSE are the judges who aren’t doing their jobs.
Eileen McDermottApril 13, 2023 12:00 pm
@Pete – I think the point is that if Moore is convinced Newman is incompetent, as a complaint under the Judicial Conduct and Disability Act suggests, why would she have asked Newman to take senior status first instead of just going forward with the complaint from the start? If she’s incompetent to perform duties, she presumably shouldn’t be on any cases at all.
PeteApril 13, 2023 11:12 am
I don’t really understand the hang up on ‘why would accepting senior status be acceptable’. It seems like if Newman is having trouble keeping up with a full docket and issuing opinions in a timely manner, assuming senior status and having only 1/3 the docket would be very reasonable remedy. Am I missing something?
Atari ManApril 13, 2023 10:30 am
Seeing Nancy Linck’s comment, if Judge Newman is still with it, she should stay on the bench. Heck, I’ve been saying for 20 years that we she clone her because she gets it right far more often than her colleagues.
And if this is an attempt to get Vidal onto the CAFC, God help us – Vidal has proven to be at best incompetent about the docx debacle and at worst outright malicious. She continues to ignore warnings that the PTO’s plan with respect to docx is unacceptable, to dissemble about there being no problems with docx, and to refuse to allow the filing of a pdf document that will control.
AlanApril 13, 2023 10:30 am
This appears to be more of a turf war than based on lack of competency. Read Judge Newman’s recent opinions and dissents. They are still as good if not better than anyone else on the Court. She asks relevant questions during oral argument (unlike some of the other judges) and is also (IMO) the most fair judge on the Court. Her integrity is without question – that cannot be said of others on the Court.
Steven MooreApril 13, 2023 10:23 am
Whether one agrees with every opinion or dissent issued by Judge Newman, everyone must agree that Judge Newman’s writings are always thoughtful and well-reasoned (and often quite entertaining!). I have always found Judge Newman to have a deep respect for the law, and a desire to make sure the law is applied equally to all. In my view, far more judges like Judge Newman are needed on the bench. I hope she can hang in there.
FrankApril 13, 2023 10:19 am
I have been preparing and prosecuting patent applications for 57 years and I still am. Judge Newman has consistently demonstrated a better understanding of patent law and its interplay with technology than any other judge.
YenrabApril 13, 2023 10:01 am
Right now Pauline Newman (b. 1927) will turn 100 in a few years. There is a lot of interest, push even, for establishing age limits or term limits. Some state courts have these for their judiciary (New York’s is age 70). What does everyone think about that, about Congress establishing an age limit? Would that be limited to the Federal Circuit, due to its subject matter jurisdiction?
Nancy J LinckApril 13, 2023 10:01 am
I clerked for Judge Newman in 1986-87 and have remained in close contact with her over the years and followed her many opinions. She is still as sharp as a tack and continues to devote her life to trying to get her opinions right in terms of the bigger picture and the laws that govern IP. She always took more time than most to issue an opinion, in part, because of the very careful, thoughtful work she put into her opinions. So that has not changed. I’m now 81 and still working, and my goal is to continue as long as Judge Newman continues, if possible. What a role model she is for those in our practice. Judge Rich was one of her role models, and I’m certain he’s rolling over in his grave because of Judge Moore’s unjustified attack. I fully agree with Gene’s analysis and suggestion that Judge Moore must have ulterior motives, such as helping her friend join the court.
Night WriterApril 13, 2023 09:51 am
Newman taught a class or two I took.
The issue is what are the facts. Is Newman incompetent? I don’t know.
I guess it is valid for Moore to question her competency.
Wouldn’t know it from her opinions.
Newman has been by far the best judge on the CAFC since Rich.
BApril 13, 2023 09:19 am
@ Mark “I’m not convinced that there is really anything to see here, except a person reluctant to make better use of her remaining time among us.”
I believe Newman is the only person qualified to determine her own best use.
As my adjunct decades ago I saw her as ancient, frail, hard-headed, opinionated, a bit grumpy, and (to me personally) a little hard to like. Then again, her competency is unmatched at the CAFC this very day except perhaps by Moore, and unlike the majority of her fellow judges, she doesn’t pretend to know things about technology that she doesn’t know.
BApril 13, 2023 08:58 am
I totally agree with you and yet, Newman is still more competent today (and far more honest) than most of the CAFC.
Mark SummerfieldApril 13, 2023 07:56 am
Judge Newman is 95 years old. While my grandmother still had most of her faculties at that age – and ultimately lived to be 109 – both of my parents were dead by 76. I’m not convinced that there is really anything to see here, except a person reluctant to make better use of her remaining time among us.
Francis G. RushfordApril 13, 2023 07:33 am
Newman is the last of the Judges that actually give a patent the presumption of validity accorded by statute. The assault on the patent system for over 20 years has resulted in attorneys not be able to provide reliable opinions to clients because of the actions of the CAFC and the USSC. As a result, attorneys and clients now question the value of filing a patent applications in the United States. If the UPC over the next few years provides consistency, the Courts in the U.S. will not have to worry about who owns an LLC or is a LP.
The Ghost of Giles RichApril 13, 2023 07:23 am
Some are saying the effort is to open a spot for Kathi Vidal, who is KM’s MIT BFF.
Atari ManApril 13, 2023 06:33 am
Have attorneys who argued before Judge Newman recently noticed a decline in her faculties?
concernedApril 13, 2023 06:02 am
There is a competency (or integrity) issue regarding many of these CAFC jurists from what I read on this board.
I am still trying to understand how my patent application met the law as written by Congress, but the application does not meet the judges’ so-called body of “unspecified” case law. The CAFC body of case law, correct or otherwise, apparently writes the law of the land. Any Congressionally passed law can be perverted by the ruling of these jurist, especially if the judges do not have to cite which rulings.
Who is going to stop the CAFC from doing what they want? Certainly not SCOTUS.
MosesApril 12, 2023 08:11 pm
You answer your own question Gene. Senior status has a much lighter docket, and 95-year-old Judge Newman has difficulty moving through a full docket in a timely manner. Getting another full time judge if she took senior status would greatly ameliorate that.
CJ Moore is a W appointee. I doubt she is very motivated to get a vacancy specifically for Biden.
I understand you write with an eye toward engagement, but I think there’s another (sadder) angle here, more along the lines of Feinstein or RBG.
AnonApril 12, 2023 06:55 pm
Judge Newman’s dissents are not new — and thus the timing factor thereof is also suspect.
CuriousApril 12, 2023 06:25 pm
That is some hardcore judicial drama.
There is a comparison to be made. It would be, however, a bad comparison in many respects — except for the judicial drama aspect.