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Members of the patent bar are lobbying to get U.S. District Judge Ronald Whyte of San Jose, Calif., appointed to the next opening on the U.S. Court of Appeals for the Federal Circuit, which has nationwide jurisdiction over patents, international trade and government contracts. Though there are no current openings, many patent lawyers expect one of the judges to take senior status by the end of the year. At its annual meeting last weekend, the Federal Circuit Bar Association voted to support Whyte’s nomination. And on Wednesday five Silicon Valley companies sent a letter to Sen. Dianne Feinstein, a member of the Senate Judiciary Committee, urging her to push for Whyte’s appointment. “Judge Whyte has honed his formidable judicial skills in the trenches resolving Silicon Valley high-tech disputes,” said Edward Reines, a partner at Weil, Gotshal & Manges and newly elected vice president of the FCBA. “It is hard to envision a better judge to add to the Federal Circuit.” The Federal Circuit has never had a district judge among its ranks, which patent lawyers say is a shortcoming of the court. Such an addition would also be significant because the Federal Circuit has been criticized for failing to give deference to district judges in their patent decisions. A district judge “will be able to bring a more realistic view of how the Federal Circuit’s legal rules will affect the practice of law,” said Stanford Law School professor Mark Lemley. While some of the opinions the Federal Circuit has issued “seem perfectly reasonable in the abstract, in fact they create collateral consequences for litigators or trial courts that are unintended.” Judge Jeremy Fogel, who sits with Whyte on the federal bench in San Jose, agrees. “It’s one thing to look at things from a remote perspective,” Fogel said. “You have a different perspective if you’ve been there” deciding when to allow an evidentiary ruling or an expert to testify. Patent attorneys began lobbying for Whyte after rumors swirled that Federal Circuit Judge Raymond Clevenger III plans to seek senior status by the end of the year. Clevenger, who turns 69 in August, was appointed to the Federal Circuit in 1990. He could not be reached for comment. Other judges on the Federal Circuit are also eligible for senior status. Judge Pauline Newman, 78, is the oldest member of the bench, and several others are 64 or older. Whyte said he’s flattered by the attention and is open to an appointment. “I certainly would be very interested in it,” Whyte said. “I think it’s always a challenge to have a new job and look at things from an appellate standpoint rather than a trial standpoint.” He said the judges he’s met on the Federal Circuit seem to be collegial. The 62-year-old Whyte has perhaps handled more patent cases than any district judge in the country. Whyte said one lawyer calculated that he’s had 150 patent cases since his appointment by the first President Bush in 1992. Among his most noteworthy cases, he oversaw Sun Microsystems Inc.’s $1 billion antitrust suit against Microsoft Corp., and he was in charge of settlement talks in InterTrust Technologies Corp.’s patent dispute with Microsoft Corp. Whyte helped craft model patent jury instructions for the Northern District that have been used by other courts. And the Federal Judicial Center has frequently asked him to teach other judges about patent law. Prior to his appointment to the federal court, Whyte had a three-year stint on the Santa Clara County Superior Court. A 1967 graduate of the University of Southern California Law School, he was a white-collar defense lawyer at Hoge, Fenton, Jones & Appel before joining the bench. The Federal Circuit Bar Association submits recommendations for court appointments to the White House counsel’s office and the Justice Department. The association recommended Whyte, along with a handful of other judges, when the Federal Circuit last had an opening in 2001. This time around Whyte is its only candidate. Some members of the patent bar say Washington, D.C., insiders have often been appointed to the bench, while district judges have been overlooked. Judge Sharon Prost, the last appointee, had been chief counsel of the Senate Judiciary Committee. Judge Randall Rader also served as counsel to the Senate Judiciary Committee prior to his appointment, and Chief Judge Paul Michel was previously counsel and administrative assistant to Sen. Arlen Specter. “The No. 1 priority for the improvement of the Federal Circuit is to start with one and then get a stream of district court judges elevated to the court,” said Harold Wegner, a partner at the Washington, D.C., office of Foley & Lardner. “Judge Whyte is superbly qualified and would be a tremendous boon for the system.” The Federal Circuit was created in 1982 to handle all appeals in patent cases. Formed from the merger of the U.S. Court of Customs and Patent Appeals and the appellate division of the U.S. Court of Claims, the Federal Circuit also has jurisdiction in international trade, government contracts and certain claims for money from the U.S. government. A primary reason for the court’s creation was to give more certainty to the law and to end forum shopping. Technology companies also have joined the campaign to get Whyte nominated. In their letter to Feinstein, Apple Computer Inc., Genentech Inc., Intel Corp. and Oracle Corp. said the addition of Whyte to the Federal Circuit would benefit the tech community around the country. “His strong reputation for the fair and effective resolution of complex technology disputes is well earned,” they wrote. “The Federal [Circuit] needs a judge with district court experience managing complex patent disputes.” Gary Loeb, Genentech’s director of litigation, said his company had never had a patent case before Whyte but knew him well from IP seminars. “He’s willing to dig in deep and understand the technology,” Loeb said. “Sometimes judges leave that to magistrates or experts.” While Whyte’s colleagues think he’s a good choice for the appellate court, they are reluctant to see him go. “It would be a tremendous loss to our court and me personally and great for the country and the Federal Circuit,” Fogel said. “Part of me hopes it happens, and part of me hopes it doesn’t.”

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