A couple of observations about Apple v. Samsung

It did seem odd that the Federal Circuit didn’t conduct oral argument or further briefing in the Apple v. Samsung en banc decision.  Others have tried to explain away the decision as being unnecessary for the court’s analysis.  The cynic in me thinks that it was to avoid having to recuse any of the majority due to amicus briefing by relatives’ firms.  I believe at least three of the Federal Circuit judges have relatives at firms in position to submit amicus briefs. With three recusals, that would have left the vote 4-3 without Judge Hughes’ tenuous “concurrence in the result without opinion.” I’m not sure why Judge Taranto recused himself.  That would be interesting to know.

A second observation is that by rule, Judge Newman chose the author of the majority opinion.  The internal operating rule at the Federal Circuit states:

2. The presiding judge assigns the authoring responsibility for each case at the end of each day’s sitting or at the end of a session. If the panel is divided, the authoring role is assigned to a member of the majority. If the presiding judge dissents, assignment will be made by the senior active member of the majority.

Because Judge Prost was a dissenter, Judge Newman became the senior active member of the majority.  She must have not wanted to write the majority opinion — as odd as that sounds — and assigned the role to Judge Moore.

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