On some of the other blogs, commenters have been wondering aloud if the Federal Circuit’s newest judge, Richard Taranto, will be allowed to participate in the CLS v. Alice case. CLS v. Alice was argued prior to Judge Taranto joining the Federal Circuit. Assuming there is no recusal, history suggests that Mr. Taranto will participate.
Judge O’Malley was sworn-in on December 28, 2010 and participated in three en banc cases that were argued before she was sworn-in (Therasense, Tivo, and Slattery). Judge Reyna was sworn-in on April 7, 2011 and participated in two en banc cases argued before that date (Therasense and Tivo). Indeed, Tivo was decided less than two weeks after Judge Reyna was sworn-in. So, the door is still open for Todd M. Hughes to participate if/when he is confirmed. Ray Chen participated in an amicus brief in the CLS v. Alice case — so, one would assume that he would recuse himself if sworn-in before the decision issues.