Ethics fail by top judge gives Congress new reason to close patent court

The country’s top patent court has few fans. It gets overturned 9-0 by the Supreme Court on a regular basis, and its contempt for outside opinion has led one writer to declare that the court had gone “rogue.” Now ethical transgressions by the patent court’s chief judge offer new grist for its critics — and strengthen the case for Congress to disband the court all together.

The latest news came on Friday morning when the Court of Appeals for the Federal Circuit (which hears every patent appeal in the country) published a brief notice on its website saying Chief Judge Randall Rader is stepping down as chief judge on May 30, but will stay on in other roles.

The announcement doesn’t say why Rader is leaving the top position, but it’s a pretty safe bet the move is tied to a recent ethics kerfuffle.

As the Wall Street Journal reported this week, the Federal Circuit recently took the unusual step of reissuing two opinions involving Rader. As it turns out, Rader recused himself from those cases after he had helped decide them. Worse, the reasons for the recusal involved an ethical impropriety: Rader had sent an effusive letter to one of the lawyers pleading the cases, and encouraged the lawyer to share his endorsement with others — something that would have helped the lawyer drum up business. From the WSJ:

“In the email, Judge Rader said he and other court colleagues had been impressed by Mr. Reines’s skill as an appellate lawyer, according to people familiar with the details of the judge’s note. The judge encouraged the lawyer to share the endorsement with others, a tool that could be used to impress clients, people familiar with the matter said….

The incident shines a light on the clubby world of patent law, where judges from the Federal Circuit and its top lawyers often develop a familiarity that can spill over into friendship. Judges from that court and lawyers often appear together on panel discussions in Washington and Silicon Valley, and hobnob at patent-law conferences.”

This sort of thing just isn’t done. Judges, like everyone else, have opinions and biases, but they must also preserve the appearance of impartiality and fairness — something that’s difficult to do when a judge publicly declares one side’s lawyer to be a personal favorite.

This episode only reinforces how far unmoored the Federal Circuit has become from the legal firmament of the rest of the country. It’s behaving less like a court and more like an agency such as the DEA, where institutional prerogatives trump the general good.

In the case of the Federal Circuit, the court long ago lost any perspective of patents as a policy tool to promote innovation, but has instead treated them as a source of institutional prestige and an end in themselves (read Timothy Lee’s “How a rogue appeals court wrecked the patent system” to get the full picture — or simply look at its bizarre copyright ruling that stunned the tech sector this month).

At this point, the Federal Circuit looks beyond salvaging. It’s time for Congress to disband the court, and return responsibility for patent appeals to the other Circuit courts.