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Professor Abigail Perdue writes in The Huffington Post about ‘The Forward Thinking, Future Shaping Federal Circuit’

Professor Abigail Perdue

Professor Abigail Perdue

The Senate recently made history when it unanimously voted to confirm the appointment of Todd Hughes – America’s first openly gay circuit judge — to the United States Court of Appeals for the Federal Circuit. But in all the hype, little has been said about the forward-thinking, future-shaping Federal Circuit whose unique nature makes it diverse in its own right, regardless of the sexual orientation of its newest member.

Located in the heart of the nation’s capital adjacent to the White House, the Federal Circuit is the only circuit where every judge resides in the same location, generating an unparalleled culture of collegiality and collaboration. It is also the only circuit with nationwide jurisdiction, so its opinions control across America and are not geographically limited like other circuits’ decisions.

Oft-described as “America’s patent court,” the Federal Circuit handles cases on international trade, government contracts, trademarks, etc. and resolves appeals from all federal district courts and certain administrative agencies. Its current caseload includes personnel and veterans’ claims, intellectual property (mostly patent) cases and money suits against the United States. In other words, the Court spends much of its time serving three noble societal goals: protecting citizens from governmental wrongdoing, balancing technological innovation against the public interest and ensuring that military heroes receive the benefits they are due.

Due to its heavy patent caseload, the Federal Circuit constantly grapples with the problem of technology outpacing the law. It applies statutes and legal doctrines to technologies that may not have even been contemplated when the legislation or doctrine became law while balancing the ever-competing interests of inventors and the public. Yet, according to Judge Jimmie V. Reyna, this intellectual challenge is what makes the Federal Circuit’s work so “unique.” As he observed, “we are trying to apply old concepts to new technologies, so we have to think differently.” Given the usual absence of explicit legislative or Supreme Court guidance, the Federal Circuit often has the final word on these issues, and legal systems around the world follow its lead.

Aside from the complicated legal issues, patent cases often hinge upon the inner workings of an incredibly complex technology. The Federal Circuit has heard cases on everything from the Xbox to genetically-engineered soybeans and smartphone touchscreen technology. Judges unfamiliar with the technology must master it to resolve the case. Judge Reyna noted that in the recent Xbox case, “I was the only one [on the panel] who had ever played Halo… [but] [t]hrough the case we always learn a lot about the technology, and that’s always a lot of fun.” Because the law cannot outpace rapid technological advances, Federal Circuit judges must determine where the law should go. Their decisions today shape the techno-legal landscape of tomorrow.

As the legal epicenter of law and technology, aftershocks of landmark Federal Circuit decisions are felt across the globe. Recognizing this, the Federal Circuit cultivates relationships with judicial bodies in other countries, and its judges annually travel abroad to discuss universal conflicts involving law and technology. In 2012, several judges traveled to China where over 1,200 academics, practitioners, and judges from around the world troubleshot common IP issues. The conference emphasized international collaboration to improve IP law and to enhance U.S./China relations. This year, Judge Reyna will travel to Korea for a similar conference and then to Italy to assist the EU Judicial Counsel in implementing an EU-wide amicus process for its patent system. He describes Federal Circuit judges as “teachers of the law…[dealing with] a lot of international components.” Chief Judge Randall Rader takes this commitment so seriously that his official portrait prominently features a world map.

The individual judges of the Federal Circuit are as just as unique as their Court. Judge Reyna was the Court’s first Latino judge, and its first Asian-American, Judge Raymond Chen, joined this year. Before their appointments, the Court already had four female judges, ranging in age from 86 to 45. The judges’ origins are also markedly different. Chief Judge Rader is a Nebraskan Mormon who served on the Court of Federal Claims before joining the Court. Judge Pauline Newman is a Yale Ph.D. and former research scientist, patent attorney, and in-house counsel born in New York. Judge Sharon Prost served as Chief Labor Counsel to the Senate Committee on Labor and Human Resources and was an Assistant Solicitor at the National Labor Relations Board, while Judge Kimberly Moore, a devout Catholic, was a law professor at George Mason. Their diverse perspectives and collaborative decision-making arguably produce more well-reasoned opinions. Furthermore, as Judge Reyna opines, the Federal Circuit “should reflect the population it’s serving because it derives its legitimacy from that population.”

No one exemplifies the way in which diverse personal experiences enhance judicial decision-making more than Judge Reyna. Born to missionaries in New Mexico, he began his legal career at a small Albuquerque firm and then took a leap of faith to solo practice to protect the rights of what he calls “The Forgotten Man.” He shared, “[t]he philosophy of the Forgotten Man has driven many of the things I’ve done… It compels me to seek justice.” Those early days were tough until a local shop-owner gifted Judge Reyna with an expensive watch to help him look the part of a successful attorney and attract more clients. The gift had one important condition — that Judge Reyna always “stand right” — (i.e., seek justice, work for good, and remember “The Forgotten Man”). Those two words became the cornerstone of his legal career. Although he ultimately ascended to the rank of partner at one of D.C.’s most prestigious law firms and became a federal appellate judge, he carried those compelling words — “stand right” — every step of the way. If you read between the lines of his opinions, you will always see them there.

According to Judge Reyna, as a judge, “[y]ou check your bias and your personality at the door, but not your life experience… [w]e are the sum total of how we were brought up, the values we were taught.” It is this kind of diversity — diversity in human experience — that enhances judicial decision-making and makes the Federal Circuit such an incredible place. So congratulations Judge Hughes. There is no better place for you to launch what I am certain will be a long and illustrious judicial career than the one-and-only, forward-thinking, future-shaping Federal Circuit.

 You can find her Huffington Post blog here.