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In a rare move, the U.S. Court of Appeals for the Federal Circuit booted a trial judge off a patent infringement case Friday. But it was not so unusual for the judge: U.S. District Judge Manuel Real. Just two weeks ago, a 9th U.S. Circuit Court of Appeals panel took a big class action against American Honda Motor Co. Inc. away from Real. The controversial Los Angeles judge has now been removed from at least eight cases by the 9th Circuit. Coming down hard on Real’s judicial skills, the Federal Circuit panel threw out Microsoft’s 2006 win over Research Corporation Technologies in a patent infringement case. In its published opinion, the panel reversed Real’s decision to declare RCT’s patents unenforceable, tossed his orders that found the patents invalid and noninfringing — and ordered that another judge take the case. “After a thorough review of all the evidence, testimony, and facts of this case, this court concludes the strongly expressed convictions of the trial court in this case may not be easily and objectively reconsidered,” wrote Judge Randall Radar for the three-judge panel in Research Corporation Technologies Inc. v. Microsoft Corp., 06-1275. Terrence McMahon, the McDermott, Will & Emery partner who represented RCT before Real, said he was glad to get a new judge on the case. “It was clear that he had a point a view and we disagreed with it — we tried the case and he cut us off at every pass,” McMahon said. “I’ve never had something like this in my whole career, and I hope I never do again.” RCT first filed suit against Microsoft in 2001 for infringing on six patents related to digital halftoning. At first with another judge, RCT won a summary judgment motion that some of Microsoft’s products were infringing. But after the case was given to Real, things went Microsoft’s way. Real reversed the prior judge’s order and then canceled the scheduled jury trial in favor of a trial on inequitable conduct to determine whether RCT had withheld information from the patent office. After an hour-long inequitable conduct trial with no witnesses, Real ruled from the bench against RCT because the inventors didn’t disclose information about new “K factor” tests to the patent office after they’d already filed for a patent. The Federal Circuit panel wrote that Real erred: The new tests weren’t material because they were done after the patent was filed and had nothing to do with the patent anyway. The panel also faulted Real’s analysis of the inventors’ intent to deceive the patent office. “In sum, the trial court erred in ignoring the materiality prong and in misapplying the intent prong of the inequitable conduct test,” Radar wrote. Finally, the panel also tossed Real’s exceptional case finding, which awarded attorneys fees to Microsoft’s lawyers. “A new day has dawned. Everything that Judge Real did has been erased,” McMahon said. A lawyer for Microsoft from Portland, Ore., firm Klarquist Sparkman did not return a phone call seeking comment. But in a statement, Microsoft said, “We look forward to going to trial for the first time and telling our story in court.” Real, 84, also did not return a phone call seeking comment. In the Honda class action, Bonlender v. American Honda Motor Co. Inc., 07-55258, a 9th Circuit panel threw out Real’s order certifying a nationwide class against the car company, saying the judge abused his discretion by certifying the class on his own “without making any findings regarding Rule 23′s requirements for class certification.” In March, he was also removed in an unpublished order from another case, U.S. v. Hall, 06-50356, in which he was accused of “excessive and biased interventions” that denied two defendants a fair trial. Two years ago, Congress dropped an effort to impeach Real over allegations that he interfered in a bankruptcy case to help a woman whose parole he supervised. A judicial discipline complaint stemming from the bankruptcy case was twice tossed out, although a public reprimand was ultimately issued. This January, the judicial discipline review body for the federal courts, the Conduct Committee of the Judicial Conference of the United States, disclosed that Real had been accused of a pattern in 72 cases over the years of not providing reasons for decisions as required.

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