The Federal Circuit has published the oral argument schedule for April 2011 which includes the case of Association for Molecular Pathology v. United States Patent and Trademark Office. The schedule reads as follows:
Panel B+: Monday, April 4, 2011, 10:00 A.M., Courtroom 201
| 2010-1406 | DCT | ASSOCIATION FOR MOLECULAR V PTO | [argued] |
Panel B: Monday, April 4, 2011, 10:00 A.M., Courtroom 201
| 2010-5142 | CFC | TRUSTED INTEGRATION V US | [argued] |
| 2011-1025 | DCT | FURNACE BROOK V AEROPOSTALE | [argued] |
| 2011-5017 | CFC | SILER V US | [on the briefs] |
When the Federal Circuit splits panels in this way, i.e., “B” and “B+,” it means that the make-up of the judges on the respective panels will be different. This sometimes highlights a recusal by one of the judges from the “+” case. But, it can be for other reasons as well.
What is unique about the Association for Molecular Pathology case is that the ACLU filed a motion for the recusal of Chief Judge Rader back in June 2010. [ACLU Motion]. So, I suspect there will be much interest in whether Chief Judge Rader was on the original panel and did recuse himself.
Other possible reasons why the panel make-up might be different are that:
1) Judge O’Malley might have originally been on the panel but chose to recuse herself because her husband’s firm (Covington and Burling) has filed an amicus brief;
2) Judge Moore might have originally been on the panel but chose to recuse herself because her husband’s firm (Latham and Watkins) might be involved in some way, such as an amicus brief;
3) A senior judge opted to hear fewer cases that month and opted out of the additional case; or
4) The court might be using a five judge panel, as it has recently done in the Rambus appeals.
Time will tell.