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Patent Bar Pushing Fogel For Federal Circuit

Publication Date: 
January 04, 2010
Daily Journal
Zusha Elinson

Lecturer in law and U.S. District Judge Jeremy Fogel and Professor Mark Lemley are mentioned in the Daily Journal as possibilities for the open seat on the Federal Circuit U.S. Court of Appeals:

Will Silicon Valley finally get a judge on the very high court of patent law?

San Jose-based U.S. District Judge Jeremy Fogel is on the White House short list for the open spot on the Federal Circuit U.S. Court of Appeals, according to a person briefed on the matter. The opening came when Judge Alvin "Tony" Schall announced in August that he would take senior status.

The argument from Fogel's supporters is simple: the Federal Circuit deals with technology patents all the time. The Federal Circuit has had an uneasy relationship with district court judges, whose opinions they regularly overturn. And in the Federal Circuit's 27 years of existence, neither a district judge nor someone from the tech capital has ever been appointed.


Whyte has since taken senior status, and Fogel, who has been on the bench for 12 years and handled more than a hundred patent cases, is now the local favorite. Fogel is getting some push from well-connected pols. Three on the House Judiciary Committee — California Reps. Zoe Lofgren and Howard Berman, plus Rick Boucher of Virginia — sent a letter to the White House last month recommending Fogel.

"It's an honor to be mentioned," Fogel said, but declined to comment further.


Mark Lemley, an IP law professor at Stanford whose name has also been mentioned as a possible nominee, agreed.

"I think the Federal Circuit would clearly benefit from having a district court judge — a lot of criticism that has been leveled at the court is its alleged insensitivity to district courts," Lemley said. "There are a lot of issues that are more evident on the ground if you are litigating patent cases on a regular basis. For example, it's quite easy to understate the significance of the damages issues or the significance of the patent troll population if you see only the cases that make it to the appellate level."

But Lemley pointed out that there are other interests who may have a stronger voice in the White House: "There's lots of different constituencies who would like to have a say in this and district court judges aren't the most powerful lobbying group."