Archive for August, 2022

Judge Dyk’s First Circuit Opinions

Sunday, August 7th, 2022

One of the interesting aspects of the federal judiciary is that Article III judges sometimes sit by designation in courts other than their home court. From the Federal Circuit, Judge Dyk has sat by designation with the First Circuit on a regular basis. The Federal Circuit used to invite judges from other courts to sit by designation; but, it has not done so much recently. Quite frankly, that has been a good move. The court has its own challenges without having to deal with additional voices, who are likely less familiar with the vagaries of patent law. Plus, it avoids any uncomfortable conversations about the Federal Circuit’s patent eligibility jurisprudence.

You can see some of the First Circuit opinions that Judge Dyk has been a part of in recent years at this [Link]. In a cursory search, I did not come across any Rule 36 Judgments in this list.

Judge Cunningham’s Opinions

Tuesday, August 2nd, 2022

Judge Cunningham was confirmed by the Senate more than a year ago. It is interesting how limited an opportunity she has been given by her colleagues to write any patent opinions. The court issues so many Rule 36 opinions that Judge Cunningham has only had a chance to author a handful of patent/trademark opinions herself. By my count, these are the only three patent/trademark “opinions” that she has authored — although this list includes some “orders” of the court relating to patent cases:

AMERICAN NATIONAL MANUFACTURING INC. v. SLEEP NUMBER CORPORATION, No. 2021-1030 (Fed. Cir. July 25, 2022).
IN RE MILLER, No. 2021-1599 (Fed. Cir. Feb. 28, 2022).

HAGE-BOUTROS v. ETHIKA, INC., No. 2021-1615 (Fed. Cir. Feb. 4, 2022).

So, we continue to play wait-and-see as to which direction Judge Cunningham will lean, if at all.