Joff Wild

While the patent reform debate in Congress takes all the headlines in the US, a more covert - but possibly more significant battle - is being fought in and around 717 Madison Place, the home of the Court of Appeal for the Federal Circuit. Over the next two years eight of the court's judges will be eligible for retirement or seniority. They are current chief judge Paul Michel (who is due to stand down from that post in 2010 to be succeeded by Randall Rader), as well as William Bryson, Timothy Dyk, Arthur Gajarsa, Alan Lourie, Haldane Mayer, Pauline Newman and Alvin Schall. Although none have gone public with their plans up to now, the chances are that at least a few will decide either to stand down completely or move into a seniority position. Opting for the latter means a much reduced workload and sitting out of the court's en banc decisions.

Anyone taking retirement or seniority has to be replaced. All replacements are nominated by the President and approved by the Senate following Judiciary Committee hearings. Given that the CAFC is the court of appeal for all US patent cases, with the ability to make fundamental decisions about the direction of US patent law (see the recent Bilski decision, for example), who the President nominates and who the Senate approves is a pretty big deal.

According to a very well placed source I spoke with in Washington DC today, both sides in the current reform debate are well aware of what is at stake and are furiously looking around for potential candidates should a vacancy arise. The last time one did crop up, the pro-reform lobby was generally regarded as the winner, when Kimberly Moore, a former law professor, was unanimously confirmed by the Senate in 2006. A few further appointments of people with similar backgrounds and views to Moore could have a profound affect on the kind of decisions the CAFC hands down. This is putting pressure on the side that favours the status quo over major change to find its own credible candidates. I understand that the search is on for suitably qualified professors and district court judges who are dubious of the need for substantial patent reform. Someone from private practice is also a possibility, but that would mean the person concerned being willing to take a substantial pay-cut. All federal circuit judges also have to live within 50 miles of Washington DC - which is a problem for both sides.

Of course, having found a candidate that is not the end of it. You still have to persuade the President to nominate him/her and the Senate to give the green light. Given what is at stake, it is not hard to foresee a very tough and rancorous nomination process, something that in itself might deter a lot of people from allowing their names to be put forward.

Anyway, I am sure that none of this is big news for readers inside the US. But for those of us based outside, personnel developments at the CAFC are well worth keeping an eye on. Patent reform via Congress is not going to happen any time soon, if it does at all. But major change at the CAFC could be just a matter of months away.