Phil Johnson Presented with Second Annual Pauline Newman Award; Newman and Quinn Question the Future of the CAFC

On the final day of IPWatchdog LIVE 2024, Phil Johnson became the second recipient of the annual Pauline Newman Award, which is presented each year to recognize the unique achievements of one patent attorney over their career. The presentation was followed by a discussion with Johnson, Judge Paul Michel, IPWatchdog Founder and CEO Gene Quinn and Judge Newman, who recapped for attendees her ongoing battle to fight her suspension from the U.S. Court of Appeals for the Federal Circuit (CAFC).

The Pauline Newman Award was created with the blessing of Judge Newman. The inaugural winner was Henry Hadad. The award recognizes excellence, influence, integrity, vision, and wisdom – all characteristics commonly associated with the award’s namesake, Judge Newman.

Phil Johnson, who is currently Founder and Principal of Johnson-IP Strategy & Policy Consulting, and Chair of the Steering Committee of the Coalition for 21st Century Patent Reform, was chosen for his leadership in the IP field for two generations, and his role as a friend and mentor to many. He first gained recognition as one of America’s preeminent patent litigators, and then as Chief IP Counsel for Johnson & Johnson.

Before presenting Johnson with the award, Quinn took the opportunity to share with LIVE attendees his recent thoughts on the trajectory of the Federal Circuit, which he explained in the latest episode of IPWatchdog Unleashed. With only about 6% of Federal Circuit actions over the last six months being precedential patent decisions, Quinn questioned whether the court could possibly be fulfilling its mission of creating consistency and predictability in patent law. “We’re at a moment in time where we need to have a serious conversation about what the Federal Circuit is and whether we need it anymore,” said Quinn.

More Problems at the CAFC

Following the award presentation, Judge Newman recounted for those present her ordeal since April 2023 with the CAFC’s Chief Judge. “In a word, I view it as deplorable,” Newman said.

She recalled that it began in March 2023 when Newman returned to her chambers to find her court’s Chief Judge Kimberly Moore waiting to tell her she was “physically disabled, mentally incompetent and that I must immediately step down,” before she was given three days to decide whether to comply. She was subsequently removed from all cases and ultimately suspended form the court for one year, which recently became two when her suspension order was renewed in July.

According to Newman, Moore’s allegations that she fainted in court, had a heart attack and had stents put in are all lies. “None of that ever happened,” she said. While she has now taken three tests assessing her cognitive ability, she has declined to take the specific tests being required by Moore “as a matter of law,” she said. “Just because these are judges doesn’t mean the law doesn’t apply to them.”

Newman’s long fight with her colleagues on the court has been well-documented by IPWatchdog—which first made the news of Moore’s order public—over the last year.

Between the court’s “irrational” behavior toward her and the issues identified by Quinn, Newman said it may in fact be time to rethink the CAFC. “There are all sorts of things that could be considered,” she said. She added:

“I encourage all of you to think through and to draw on your experience because there has to be a better way. I personally think the Federal Circuit has sufficiently departed from appropriate policy that their decisions have to be remedied through congressional action. The future is in your hands, the leadership in your hands, and I encourage you to speak out.”

Michel, who served as Chief Judge on the court from 2004 to 2010, agreed that the CAFC worked well for the first 10 to 20 years or more, but that “in the last decade or so it seems to have all deteriorated.” He commented that “judges have hugely screwed up the patent law,” to the point that now the only remedy is “legislative correction, because courts are totally precedent-bound.”

While Johnson declined to comment on whether it’s time to rethink the CAFC, he called Newman “a national treasure” and “a judge who in my view never made a mistake.”

The final day of IPWatchdog LIVE 2024 also featured sessions that explored the role of artificial intelligence in patent drafting and prosecution as well as the role of prior art and examination, the economics of IP and innovation, winning the battle against knowckoffs and counterfeits, and much more.