The U.S. Court of Appeals for the Federal Circuit will likely be getting its first district court judge -- but it won't be San Jose, Calif.'s Jeremy Fogel.
The Obama administration is zeroing in on Kathleen O'Malley, a judge from the Northern District of Ohio, for a spot on the court that hears all appeals in patent cases, according to three people familiar with the situation. The American Bar Association has been vetting O'Malley, these people said, speaking on the condition of anonymity because the process isn't public.
The ABA only vets judges that the White House wants to nominate, said a lawyer familiar with the vetting process.
The Federal Circuit has suffered from an Ivory Tower reputation and there has been a movement in the patent bar to nominate a down-in-the-trenches district court judge who deals with patent cases every day. A spot opened up when Alvin "Tony" Schall announced in August that he would take senior status.
Fogel was on the White House short list for the spot. He's handled more than 100 patent cases in his 12 years on the bench in San Jose. He garnered support among Silicon Valley patent lawyers who believe there should be a judge from the tech capital on a court that often deals with technology patents.
Fogel said he didn't think it would be appropriate to comment for this story.
He still may have a shot at the Federal Circuit. Seven of the Federal Circuit's 12 judges will be eligible for senior status by 2010. Chief Judge Paul Michel has already announced that he'll retire in May.
Also on the White House short list was Judge Gregory Sleet, chief judge of the patent-saturated U.S. District Court of Delaware.
O'Malley was appointed to the bench by President Bill Clinton in 1994. Before that, she worked for the Ohio attorney general and was a litigation partner at Porter Wright Morris & Arthur. O'Malley has sought out patent cases although Ohio isn't a hotbed of patent litigation.
Her husband, George Pappas, is a noted IP partner who works with Covington & Burling in Washington, D.C.
O'Malley didn't return a call to her chambers seeking comment.
The White House didn't return an e-mail seeking comment and the ABA said it doesn't reveal the identities of "any potential nominee under evaluation."
There are a couple of reasons why a district court judge hasn't ever been appointed to the Federal Circuit.
One is the quirky Baldwin rule, which requires Federal Circuit judges to live within a 50-mile radius of Washington. The rule comes from Judge Phillip Baldwin, who famously preferred his native climes of Texas to the Beltway. The rule could be tossed if the current version of the patent reform bill gets signed into law.
Another reason is politics. Many of the judges are D.C. insiders like Randall Rader and Sharon Prost, both former staffers of Orrin Hatch, a longtime member of the Senate Judiciary Committee.
Even though local patent lawyers would welcome any district court judge to the court, they still hope for a Silicon Valley representative.
"Judge O'Malley would go a long way to filling important needs and point for the next slot to a nominee from the west, which has long been overlooked for this national court," said Edward Reines, a patent lawyer at Weil, Gotshal & Manges in Redwood City.
The last time the local patent bar pushed for a Silicon Valley judge it didn't work out, either. They rallied for San Jose-based U.S. District Judge Ronald Whyte in 2006, but the Bush White House decided to nominate instead Kimberly Moore, a professor at George Mason University School of Law in Virginia.
I. Neel Chatterjee, a patent litigator at Orrick, Herrington & Sutcliffe in Menlo Park, Calif., said he remains "hopeful that we'll have a Silicon Valley presence at the Federal Circuit and I continue to think that Judge Fogel would be a great choice."
