An interview with the honorable Randall R. Rader, Chief Judge of the US Court of Appeal for the Federal Circuit

Intellectual Property and Technology News

On November 18, 2010, the day before his Portrait Presentation, Chief Judge Randall Rader shared his candid thoughts about his plans for the Federal Circuit with his former clerk, DLA Piper associate Laura Robinson, and Erin Gibson, another DLA Piper associate, who tried a case before him when he served as a visiting judge in the Northern District of New York.


IPT: How has your life changed since you became Chief Judge?


Rader: What has impressed me the most is the support and unrivaled dedication that I have received from my colleagues. To have people like Circuit Judge Newman, who is a legend in our field, offer to help in any way. Or to have former Chief Judge Danny Friedman make similar offers, even at the age of 94, is touching. I realize this is an institution blessed with very talented judges, and I am awed at what the Federal Circuit is and can become.


IPT: What is your favorite thing about your new chambers?


Rader: The view is sensational! Also, we have rearranged the chambers to accommodate the vast number of guests the Court receives. In recent months, many of those guests have been international guests. That reflects the importance the Federal Circuit has in the international arena. The Federal Circuit has a distinct place in international jurisprudence. Court delegations and officials from other countries

see the importance of visiting here and learning more from us. And we have the same obligation to learn more from them.


IPT: You have presided over several district court trials as a visiting judge. What did you learn?


Rader: Those trials have been some of the most important experiences for my work as an appellate judge. I have come to understand that narrowing issues and putting together a decent, comprehensible record is an enormous challenge. Presiding over trials as a visiting judge gives me an understanding of that trial process. Constantly ruling on motions is another challenge that most appellate judges do not have to confront. It has made me a better appellate judge.


IPT: Have you encouraged other Federal Circuit judges to try cases as visiting judges?


Rader: Yes. I am, at present, arranging similar opportunities for my colleagues. I hope they will take advantage of these opportunities to obtain the same educational experience that I have profited so much from.


IPT: The Federal Circuit has had its own visiting judges in the past. Will that continue?


Rader: Yes, Judge Ron Whyte from the Northern District of California will be sitting with the Federal Circuit next month. He is among the best patent trial judges in the world. He will bring a vast amount of expertise and insight to our jurisprudence. We have three vacancies on the Court at the moment, which is one fourth of our judgeships. Judge Whyte will help us, and I think we will have another visiting judge following him a month or two later.


IPT: If you could give district court judges one instruction, what would you tell them?


Rader: I might tell them that patent litigation is really no different from any other form of complex civil litigation, such as complex antitrust, copyright, or contract cases. Any of those types of cases can delve into difficult legal and subject matter. The secret is to immerse yourself in the subject matter, in a patent case the technology, and with some learning it begins to take on some dimensions that can be managed.


IPT: Earlier this year, we interviewed David Kappos, Director of the PTO. Could you tell us about your interactions with the PTO?


Rader: Yes. I interact quite closely with the PTO. Deputy Director Sharon Barner was here yesterday during my meeting with the European Patent Organisation President. Commissioner of Patents Bob Stoll called me twice last week to discuss issues as well. Director Kappos is a very close friend, and we rece Kappos sees the value of the conference for his international programs.


IPT: Can you tell us more about the Federal Circuit’s plans in Tokyo?


Rader: In May 2011, six Federal Circuit judges will travel to Japan for a joint judicial conference with the judges of the Tokyo IP High Court. For two days, the judges will join panels of company experts and attorneys for a discussion before an audience of hundreds, largely from Japan. Judges Gajarsa, Linn, Dyk, Prost, and Moore will join me in Tokyo from the Federal Circuit.


IPT: What is the purpose of the Tokyo conference and your outreach in Asia overall?


Rader: I have a vision of an international standard of judicial performance, where judges recognize that we cannot have widely divergent standards and results in similar cases, or international business will be inhibited by the legal system rather than facilitated by the legal system. A key to that is communication, as I have observed in my interactions with judges in Europe in the past 10 years. As we have talked to each other and have become friends, we have consulted each other’s jurisprudence as well. In some instances that has been beneficial for development of the law and has brought European and US systems closer together. That is the grand vision of what we will do in Tokyo. The conference will be educational, for us all to learn from each other, and it broadens our understanding of the reach of what the Federal Circuit does.


IPT: In your opinion, does the work of the Federal Circuit impact international business?


Rader: Yes. International corporations – whether in Japan, China, Europe or elsewhere – are affected by the work of the Federal Circuit, and it helps for us to recognize that. Not that this understanding would directly impact the outcome of cases. We, of course, decide cases according to the facts and law before us. But when you have a vision of all the consequences of particular rulings, it may have some influence on how those rulings would be expressed.


IPT: What can you tell us about the Federal Circuit’s Advisory Council?


Rader: The Advisory Council has a statutory role to give the Court comments on its rules changes. Any changes in the Federal Circuit’s procedures or rules go first to the Advisory Council for comments, and then to a public comment period. I will use the Advisory Council in an expanded role to undertake objectives that will help the Federal Circuit with certain achievements as we move into a new era.


IPT: What achievements do you have in mind?


Rader: A major objective will be to involve the court more in international activities. I mentioned the program in Tokyo in May. Also, I met with representatives from the Supreme People’s Court of China and the Ministry of Commerce in China, and we started to outline a similar program for Beijing.


IPT: Will the Advisory Council help you to advance other goals?


Rader: I have two major goals. The first is tackling the great weakness of the American system – the expense of litigation – and particularly the expense of discovery. The Advisory Council meets today and will appoint a subcommittee that will devise some proposed rules to limit the cost of discovery. The Advisory Council also is undertaking an encouragement of district judges to inquire early into the value of cases, including by conducting a damages Daubert hearing. That might entail a cure period if an expert’s testimony is excluded upon a Daubert motion. In other words, it would allow litigants a chance to repair the expert testimony that the judge has thrown out.


IPT: Many believe that Congressional patent reform efforts may slow or stop, given the recent turnover in Congress. Do you agree?


Rader: When Congress is in transition, as it is after this last election, its business tends to slow down. I cannot predict exactly what will happen. Congress may surprise me and enact something tomorrow. But I doubt it. Congress has higher priorities and a lot going on, and it may delay patent reform into the next Congress and perhaps beyond. I observe that the main topics of patent reform have been the subject of Federal Circuit

jurisprudence in past years. There might not be the same need for Congressional patent reform that existed in past years.


IPT: What should in-house lawyers know about the Federal Circuit?


Rader: The Federal Circuit has a great impact on their work. I think they understand that. I think they understand that intellectual property is vital to any enterprise. I think they understand that trade is the future of any market. I also think they understand that principles of contract and antitrust underlie business relationships always. All of those issues find their way to the Federal Circuit. I do not think you can do a good job of advising your business, whether in-house or outside, without a clear understanding of the Federal Circuit.


IPT: You soon will be speaking in the Eastern District of Texas. Can you give us a preview?


Rader: The Eastern District of Texas has some great virtues. Its juries are magnificent. Its judges are intelligent and well schooled in patent law. I do have some concerns that patent litigation is becoming too centralized in a few districts that I will address. I have a few other comments that I will reserve for my speech in Texas.


IPT: Will you talk about procedure?


Rader: Yes. One of the things you know, and that Ms. Gibson knows perfectly well, is the need to ascertain early in litigation the value of that litigation with some kind of judicial inquiry into what is at stake. Then you can tailor the amount of procedure to give to a case according to its value to the litigants. All cases aren’t equal. I think the judiciary can help parties see the value of their case earlier and tailor procedure to match what is really at stake.


IPT: What else will you discuss?


Rader: I have six ideas for the Eastern District of Texas. By the way, idea number six is better restaurants in Marshall! But the first five are substantive, and I only gave you a peek. At least you can see that I have a desire for us to improve the system – improve the way we handle all forms of litigation, but particularly patent litigation.


IPT: What is your opinion of the increase in patent reexaminations and stays pending reexamination in district court cases?


Rader: I am a little troubled. One of the virtues of the US system is that we keep validity and infringement together. It prevents artful litigating – that you might argue in one forum that a patent is narrow enough to escape prior art and argue in another forum that a patent is broad enough to capture accused products. I like our American system that keeps that in one forum, as district courts do. As we migrate toward a nullity proceeding elsewhere, we lose some of the virtues of our system. We also have inevitable delays. I think that is damaging to business as well. Business needs a quick and definitive decision one way or the other. To have to wait – first to go through reexamination, which is quite delayed at this point, and then wait at the other end for a trial – that is not the way our system is supposed to work.


IPT: Do you still have time for your favorite hobbies?


Rader: Tennis and music, yes! It is interesting that my band, and yes it is a rock band, is getting a few invitations to play at events. Of course, these invitations are mostly for patent law conferences. So I have to question whether the invitations are based on our musical ability – or our providing a different form of entertainment!


IPT: How often do you win in tennis?


Rader: Always! (Quietly: That isn’t true.)


IPT: You grew up in Oregon and are a big fan of the Oregon Ducks. How do you like the Ducks’ chances for a National Championship in football this year?


Rader: I am so glad you asked that question! Other than our excellent track and field teams, it has been so many years since Oregon has had any vastly successful athletic program. We are basking in glory at the moment. Sadly in sports, pride often goes before the fall. But we have to hope that they make it to the National Championship.