Federal Circuit Set to Have First Vacancy in Six Years

by Eric Caligiuri
The IP Law Blog

On March 16, 2021, U.S. Circuit Judge Evan J. Wallach for the Federal Circuit Court of Appeals announced he plans to take senior status on May 31, 2021.  This semi-retirement is set to create the first vacancy at the Federal Circuit in almost six years.  The Federal Circuit handles all appeals of patent cases from Districts Courts in the U.S., and appeals from various government agencies.  Thus, the Federal Circuit is the only one of the thirteen federal courts of appeal whose jurisdiction is determined entirely on the subject of the lawsuit it hears, rather than on the geographical location from which the appeal originated.  This means the Federal Circuit can hear appeals from every District Court in the United States as long as it has subject matter jurisdiction. The only court in the United States with more authority over patent related issues in the United States Supreme Court.

The Federal Circuit was the only federal court of appeals that did not have any vacancies during President Donald Trump’s administration.  In fact, President Trump nominated and succeeded in putting a judge in every other appellate court during his four years in office, including fifty-four judges on the federal appeals bench.  However, the Federal Circuit remained untouched, and in fact currently has eight Democratic-President appointed judges, and four Republican-President appointed Judges.

Judge Wallach was confirmed in November 2011 after being nominated by President Obama, and will take senior status after spending nearly a decade at the Federal Circuit.  Senior status is a form of semi-retirement that allows judges to vacate their seats on the bench but keep working with the option of reducing their caseload.  Judge Wallach had previously served a 16-year stint as a judge in the U.S. Court of International Trade.

Some of Judge Wallach’s more well-known recent opinions include Phigenix, Inc. v. Immunogen, Inc. in 2017 that expanded the bar on competitor standing to appeal decisions from the Patent Trial and Appeal Board, and, Blackbird Tech LLC v. Health in Motion LLC, et al. in 2019 that expanded the ability of the winning side in patent litigation to recoup legal costs in exceptional cases by citing the number of patent lawsuits brought by the plaintiff (110 cases in a four-year period in the case of Blackbird).

Now, President Biden will have an opportunity to appoint a judge to the Federal Circuit for the first time in six years, and an opportunity to make an impact on the courts and the future of patent law in the United States.