Federal Circuit Yanks Rader's DataTern Dissent

Federal Circuit Yanks Rader's DataTern Dissent U.S. Court of Appeals for the Federal Circuit Chief Judge Randall Rader. July 17, 2013. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

SAN FRANCISCO — Poof!

A dissent from U.S. Court of Appeals for the Federal Circuit Chief Judge Randall Rader in an important declaratory judgment jurisdiction case no longer exists.

The Federal Circuit on Monday withdrew its April 4 decision in Microsoft v. DataTern and reissued it, minus Rader’s dissent. In a footnote, the court indicated without further comment that Rader had recused himself.

The decision addresses whether Microsoft Corp. and SAP AG had jurisdiction to sue patent assertion entity DataTern after that company threatened to sue numerous business customers of the software giants. Judge Kimberly Moore agreed with Microsoft and SAP that they could bring suit to the extent DataTern had accused them of inducing or contributing to infringement. But she and Judge Sharon Prost ruled against Microsoft on one patent, saying DataTern’s communications had not raised “a substantial controversy” that infringement existed.

Rader dissented from that last part, saying it created a roadmap for patent holders to keep major corporations on the sidelines “while seeking numerous settlements with their customers who cannot afford the cost of a major lawsuit.”

DataTern filed a petition for rehearing Friday, though there was no sign it had requested Rader’s recusal. McCarter & English partners Erik Belt and Lee Bromberg, who represent DataTern, did not respond to a request for comment Monday afternoon. Neither did Rader nor Weil, Gotshal & Manges partner Edward Reines, who represents Microsoft and SAP.

Emory University School of Law Dean Timothy Holbrook said recusals are fairly routine at the Federal Circuit, which schedules extra hearings most months to allow for the substitution of individual judges. In this case, the court simply may not have recognized a personal or financial conflict until after the April 4 opinion issued, he said.

As a practical matter, Rader’s recusal means that Microsoft won’t be able to invoke his dissent should the company petition for rehearing. “It would be inappropriate for someone asking for panel rehearing or rehearing en banc to rely on that,” Holbrook said. “It’s as if it never existed.”

Contact the reporter at sgraham@alm.com.

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