By Marcia Coyle
President Obama this fall will have his first opportunity to put his stamp on the patent-heavy U.S. Court of Appeals for the Federal Circuit. Judge Alvin Schall recently told the White House that he will take senior status in October. That will create the first of what could be as many as eight vacancies on the appellate court in the president's first term.
Eight of the court's 12 judges will be eligible to retire or to take senior status in less than two years. The judges currently eligible for senior status include Chief Judge Paul Michel, Pauline Newman, Haldane Mayer and Alan Lourie. Those eligible this year are Schall, Timothy Dyk, Arthur Gajarsa and, in early 2010, William Bryson. Four senior judges now sit on the court: Daniel Friedman, Glenn Archer, S. Jay Plager, and Raymond Clavenger.
The potential changeover would be the greatest since the court was established in 1982. Often mentioned by patent practitioners and academics as potential nominees are: U.S. district judges Kathleen O'Malley of the Northern District of Ohio in Cleveland; Jeremy Fogel of the Northern District of California in San Jose; and Patti Saris of the District of Massachusetts in Boston, along with Judge Mary Ellen Coster Williams of the U.S. Court of Claims in Washington.
The pool of new judges from which Obama could choose might be narrowed somewhat because of the so-called Baldwin Rule. That's a 25-year-old statutory requirement that every active judge and the chief judge of the Federal Circuit must live within 50 miles of the court's home base, the District of Columbia.
The Federal Circuit is the only federal appellate court with a residency requirement. For all other circuit courts, the law only requires that at least one circuit judge in regular active service be appointed from the residents of each state in that circuit.
The historical origin of the residency requirement is not known precisely, but many practitioners and scholars credit the view of one intellectual property practitioner present at the circuit court's birth in 1982--Harold Wegner, partner in D.C.‚s Foley & Lardner.
Wegner dubbed the residency requirement the "Baldwin Rule," the goal of which was to block the eventual succession of Judge Phillip Baldwin of Texas to chief judge of the new circuit. Baldwin was a judge on the U.S. Court of Customs and Patent Appeals which was merged with the appellate division of the U.S. Court of Claims into the new Federal Circuit. Baldwin was unlikely to move from his Texas home to D.C., according to Wegner, hence the anti-Baldwin rule.
Recent versions of patent reform legislation would repeal the Baldwin Rule, but patent reform legislation, like the crocus in springtime, is perennial.