The Campaign Against Judge Newman Underscores the Downfall of the Federal Circuit

“Regardless of whether there will be any long-term deleterious effects for the Federal Circuit, Chief Judge Moore is not winning friends or allies and is destroying her own reputation.”

Federal CircuitHow much damage is Chief Judge Moore doing to the institution that is the Federal Circuit? That question is hard to answer in the present, but there is no doubt that she is causing the type of damage that will linger and perhaps ultimately lead to the downfall of the court itself.

Even before the latest episode in which Chief Judge Moore has taken it upon herself to impeach Judge Newman, acting as complainant, investigator, witness and decider, it had become common for many in the industry to ask openly whether the Federal Circuit had outlived its usefulness.

Let’s be honest, the Federal Circuit was created to bring certainty and stability to patent law, yet today they do neither. Decisions from the court have increasingly become panel dependent over the years. Now, thanks to Judge Moore, we have had a retirement and reassignment to allow her upon request for rehearing to flip her dissent into the majority opinion. That is unconscionable, and it is unforgivable for the Supreme Court to have done nothing, refusing certiorari in what should have been a layup— the very poster child for judicial activism and overreach.

A Farce and a Fairytale

But now we have Chief Judge Moore withdrawing Judge Newman from all assignments and removing or restricting her computer access all based on hearsay (and clearly erroneous) allegations that Judge Newman is no longer mentally competent and that she is slow to issue decisions. It is a farce, fairy tale and outright misrepresentation to pretend Judge Newman is not working, as Chief Judge Moore’s complaint insinuates. Judge Newman is meticulous, and she writes many dissents explaining in point-by-point detail why her colleagues are wrong— and she is almost always right. Dissenting takes great effort, and she painstakingly gives the court history lessons explaining why this decision or that decision of a panel ignores or functionally overrules precedent that should only be touchable en banc.

Moreover, in speaking with Judge Newman’s former clerks, we’ve learned that in the era before word processing was commonplace it was not unusual for Judge Newman to go through 50 or more drafts. Newer former clerks tell me Judge Newman takes a hands-on approach to editing, tracking changes, because she is more computer literate than many of the other judges, and still it is not unusual for her to go through 20 or more drafts. So, it is just inaccurate to suggest that Judge Newman is not working, and it is ridiculous to pretend that her speed (or lack thereof, as the result of her attention to detail) is anything new. In speaking with numerous people who are familiar with the Federal Circuit, Judge Newman’s speed to issue decisions has been something every Chief Judge has faced since she joined the court. So, why now is this suddenly an impeachable matter?

Regardless of whether there will be any long-term deleterious effects for the Federal Circuit, Chief Judge Moore is not winning friends or allies and is destroying her own reputation.

There is a reason why few in the industry are speaking out publicly on behalf of Judge Newman. Everyone I speak with is afraid of retribution, and specifically fearful of retaliation from Chief Judge Moore. There is real fear that anyone who might stand up for Judge Newman would draw the ire of Chief Judge Moore, and every firm that does any form of litigation is prohibiting attorneys from saying anything publicly on this matter. That so many in the industry fear Chief Judge Moore is particularly worrisome and speaks to a lack of trust and deep suspicion, which is harmful to the administration of justice.

Unreasonable and Un-American

So, where does Judge Newman stand? It is hard to say because Chief Judge Moore has issued a gag order, which itself is rather unbelievable, given that she is trying to unseat an Article III constitutional officer. We also have learned that Moore has denied the very reasonable and common request for a transfer to another Circuit. So, Moore will remain the complainant, witness, investigator and decider— which is absolutely un-American.

If everything is above board why the gag order? If this is just about removing a mentally incompetent judge, why refuse a transfer order when you yourself will be a witness because your complaint only alleges secondhand hearsay? And for goodness sakes, where are the other Judges on the Federal Circuit; are they as afraid of Chief Judge Moore as the bar is?

Frankly, the longer this goes on and the more unrelenting and unreasonable Chief Judge Moore becomes, the more apparent it becomes who it is that is really unfit for service on the court. The chilling effect these actions are having are not healthy, or wise, and work only to undermine the credibility of the Federal Circuit.

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Author: viperagp


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Join the Discussion

17 comments so far.

  • [Avatar for John K]
    John K
    May 27, 2023 04:26 pm

    God bless you for this Gene.

    You’re the only one with the guts to stand up to what is blatant unconstitutional and unconscionable tyranny.

    Bless you.

  • [Avatar for Anon]
    May 12, 2023 06:39 pm


    Your assertions are NOT facts. Perhaps you have something to say about the nine pages of facts that the attorneys for Judge Newman have placed on the record?

    As I posted previously – it is pretty easy to see that the ONLY people upset at Judge Newman are those that are merely litigators or those who do not like strong innovation protection.

  • [Avatar for Federal Circuit Practitioner]
    Federal Circuit Practitioner
    May 11, 2023 11:26 pm

    Another unhinged blog post that spreads blatant lies.

    Mr. Quinn knows that it is the Court, not an individual judge that is working under the judicial disability statute. The relentless and false attacks against the current Chief Judge should cease. Discuss the Court all you want, but at least be honest about the facts.

  • [Avatar for Anon]
    May 11, 2023 11:50 am

    Any views on the recent filings?

  • [Avatar for Concerned]
    May 11, 2023 04:20 am

    Just another curious article to breeze through and primarily examine the law and the evidence.

    Some people have been pushed around for so long that they seem to just go along and blame others for standing up.

    Not the author of this article or the people who have posted to the same thus far. Thank you for speaking out with the truth and fighting the good fight!

  • [Avatar for Paul Morinville]
    Paul Morinville
    May 10, 2023 01:20 pm

    Anon, As I understand the problem allegedly fixed by the creation of the federal circuit, it was that each circuit appeals court had slightly different law that favored one side or the other. Due to that, forum shopping for the right circuit was common. I see no problem with the. Either side can file suit first. Plus, the distribution of power to multiple courts thwarts corruption. With that power in one court, it does what consolidating power always does, it corrupts the system. No system is perfect, but consolidating the power over the US innovation engine into the federal circuit is certainly the worst choice.

  • [Avatar for Anon]
    May 10, 2023 07:28 am

    I would advise care, Mr. Malone — creating a power vacuum may well invite a worse structure.

    I have addressed this in my calls to Congress to use their Constitutional power (as part of the Checks and Balances) to remove patent cases from the Supreme Court (given that patent cases are not a matter of original jurisdiction from that body of the Judicial Branch.

    In order to stay in accord with Marbury, we DO still need to have Article III review, so a new — and untainted — appeal body need be put in place.

    Simply disbanding is not a viable answer as all that THAT does is place us in the same boat that existed before the specialized appeals court was created — without addressing the problems that drove us away from that system.

    Also of note, when THAT specialized court was first created, there was no path to the Supreme Court.

    Eliminating that feature has proved to be a critical mistake.

  • [Avatar for Josh Malone]
    Josh Malone
    May 9, 2023 11:29 pm

    The Federal Circuit has outlived it’s usefulness. Time to dissolve it

  • [Avatar for Paul Morinville]
    Paul Morinville
    May 9, 2023 05:37 pm

    The Federal Circuit was an errant and harmful experiment in the consolidation of power. When a judge is nominated to any other circuit court, the media blasts abortion and gun rights, and Senate hearings light up for their political base. But placing damaging judges into the Federal Circuit is silent because the public is ignorant of patents and really could care less, which is a shame because the Federal Circuit solely can destroy our innovation engine, as it so expertly has already.

    Even if by some miracle, good judges begin to be placed in the Federal Circuit, it will not last long. There is just too much money and power in huge multinational monopolies, and that money drives the selection of judges.

    Consolidating power always leads to corruption either directly or by group think. The Federal Circuit’s authority for patent law must be revoked.

  • [Avatar for MD]
    May 9, 2023 02:10 pm

    The Federal Circuit has not just lost its effectiveness, it’s a failed experiment. The original design was to create a court where judges had science or engineering degrees or experience with patents. So that they would be able to understand patents and rule effectively.

    How many of the court today have this? Only 30%. The Federal Circuit has become a political reward system. They get the job by what politician they helped elect.

    Also, like other judges exposed in a recent Wall Street Journal report, the Fed Circuit is not immune to bias charges where their family members are working-or profiting from cases that come before the court.

    I know in my instance that my company came before the Fed Circuit and the judge’s son worked for Google. Yet, the Judge had no problems ruling in Google’s favor.

    The court would be a joke if it weren’t damaging so many lives of true inventors. The only way to fix it is to disband it and call it what it is—a failed experiment, packed with biased and unethical judges.

  • [Avatar for B]
    May 9, 2023 10:12 am

    Dear Gene,

    Great article.

    My take. The more Judge Newman fights back, the more idiotic, repressive, and unfair the treatment of her will be. For those of us who don’t trust most judges on the CAFC to begin with, it’s depressing but not totally unexpected.


    @ concerned “People on this forum who criticize B for doing the same probably are on the wrong forum.”

    The number of people who criticize me (and others) but not do anything far outnumber the people doing the smallest anything – and most of such critics act like spoiled ADHD children who just discovered TikTok.

    Turning back to Judge Newman, if she’s reading this article and our comments, I hope she takes comfort in the fact that the vast majority of us are pulling for her. However, Judge Newman should take this opportunity to do a bit of skeet shooting, mountain climbing, and bear wrestling.

  • [Avatar for Nancy J Linck]
    Nancy J Linck
    May 8, 2023 09:20 pm

    I could not have said it better, Gene. Everything you have said is exactly right. Thank goodness there are folks like you who speak their minds! I hope your message reaches the other judges on the court and others who are in a position to make a difference.

  • [Avatar for Jonathan Rogers]
    Jonathan Rogers
    May 8, 2023 08:57 pm

    Bravo to Gene for standing up for what’s right and speaking the truth.

  • [Avatar for Pro Say]
    Pro Say
    May 8, 2023 07:57 pm

    The Queen has no clothes.

    Her Court knows it.

    Yet say nothing.

  • [Avatar for Trademark]
    May 8, 2023 07:54 pm

    How is this any different than what the OED does with lawyers? They act like judge, jury, and executioner at the whim of the USPTO Director. See their actions against Asian American attorneys lately.

  • [Avatar for Alan]
    May 8, 2023 07:28 pm

    This is just so … asinine. I know ipwatchdog has a good following in the IP community, but this needs to reach a broader audience. While some are afraid of the wrath of Judge Moore (fortunately not Gene :-), I have yet to see any articles in favor of what Judge Moore is doing.

  • [Avatar for concerned]
    May 8, 2023 04:46 pm

    Mr. Quinn is another person who thinks the CAFC is full of it and he says it with his own REAL name attached.

    Good for you Mr. Quinn!

    Our country was founded by people just like you who stood up against the king and fought.

    People on this forum who criticize B for doing the same probably are on the wrong forum.

    BTW: Mr. Quinn noted in the comments of my first article that it was a shame I did not get the patent.