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Hon. Susan G. Braden
Jurist-In-Residence
Center for Intellectual Property and Policy GIP2- Anthony Scalia Law School
Chief Judge Susan G. Braden (Ret.) was appointed in 2003, by President George W. Bush, to the United States Court of Federal Claims, which has exclusive and national jurisdiction over cases against the federal government arising from, among other things, patent and copyright infringement. In March 2017, she was designated as Chief Judge. After her retirement from the federal bench in 2019, she was appointed to serve as a Public Member of the Administrative Conference of the United States and a Fellow of the American Bar Association. In 2020, she was appointed by the Secretary of Commerce to serve a three-year term on the United States Patent & Trademark Office’s Private Patent Advisory Committee.
In addition, Judge Braden serves on the Board of Directors of privately held companies in the software, artificial intelligence, and construction industries and is a member of the Board of Directors of the United Inventors Association. Judge Braden is also a member of the American Arbitration Association’s M&A, IP/Technology, and Large Complex Commercial Panels and was appointed in 2020 by the United States Trade Representative to serve a three-year term as an arbitrator representing the United States in disputes arising under the United States-Mexico-Canada trade agreement. She also serves as an Arbitrator/Mediator/Corporate Monitor for the American Arbitration Association and FEDARB and is a Jurist-In-Residence at the Antonin Scalia School of Law’s Center for the Protection of Intellectual Property.
During her tenure on the bench, Judge Braden issued 456 precedential opinions, affirmed by the Federal Circuit, awarding approximately $1 billion in damages to major companies in the aerospace, airline, banking, computer, defense, electric utility, financial services, nuclear, oil and gas, software, steel, and telecommunications industries.
Recent Articles by Hon. Susan G. Braden
For well over a year, Senator Elizabeth Warren (D-MA) and some members of Congress have engaged in a campaign to urge the Health and Human Services Secretary Xavier Becerra to break patents on pharmaceuticals to lower drug prices by invoking a century-old statute, Title 28 of the U.S. Code 1498. This is their “game plan”: HHS should contract with generic drug companies willfully to infringe pharmaceutical patents, thereby requiring any damages to be paid from public funds. This strategy took a new tack in early March 2023, when the Biden Administration’s Justice Department filed a surprise “Statement of Interest” in a private lawsuit on behalf “the Government and its Department of Health and Human Services and the Department of Defense.” The case, filed in Delaware federal court, was initiated by Arbutus Biopharma and Genevant Sciences, which allege that that patents they own were infringed by Moderna in producing its version of the COVID-19 vaccine.
Judge Kimberly Moore, in a comprehensive and insightful opinion dissenting from the denial of the petition for rehearing en banc in Athena Diagnostics, Inc. v. Mayo Collaborative Servs., 927 F.3d 1333 (2019), emphasized that the lack of clarity in Section 101 jurisprudence is one of the most critical issues in patent law. Sensing no interest by her colleagues in crafting an opinion with sufficient common denominators to provide instructions to trial judges on how to navigate the cross-currents created by Federal Circuit decisions post-Mayo/Alice, Judge Moore advised litigants: “Your only hope lies with the Supreme Court or Congress.” Id. at 1363. Not now. Several months after Athena, the USPTO took the initiative to issue a guidance document “October 2019 Update: Subject Matter Eligibility,” in response to requests by numerous stakeholders for more clarity and predictability. Consequently, in light of well-established Supreme Court precedent in administrative law, there is every reason for the Federal Circuit to now adopt the analysis of these Guidelines in future Section 101 cases.
