Chief Judge Randall Rader, U.S. Court of Appeals for the Federal Circuit
Chief Judge Randall Rader, U.S. Court of Appeals for the Federal Circuit (Diego M. Radzinschi / The National Law Journal)

SAN FRANCISCO — Federal Circuit Chief Judge Randall Rader should explain why he recused from an appeal earlier this month after the court had already issued its ruling, the party that lost the appeal told the court Wednesday.

Acknowledging that it’s “a matter of great sensitivity,” McCarter & English partner William Zucker filed a letter with the U.S. Court of Appeals for the Federal Circuit seeking “full disclosure” of Rader’s reasons, including when during the litigation they became an issue.

“Whatever the reason for recusal it should be open to scrutiny so as to avoid any appearance of impropriety,” Zucker wrote, adding that the information may figure into his client’s petition for rehearing.

Zucker’s letter on behalf of patent assertion entity DataTern makes public a question on the minds of many within the Federal Circuit bar. Microsoft v. DataTern is one of two high-profile cases from which Rader recused earlier this month, after issuing decisions or orders in each of them. Litigants in both cases are represented by Weil, Gotshal & Manges partner Edward Reines, who vacated his position as chairman of the Federal Circuit Advisory Council the same week.

Neither Rader nor Reines has been willing to discuss the matter, and one member of the advisory council said Wednesday that no explanation has been given yet for Reines’ departure.

Emory Law School professor Timothy Holbrook said he’d be shocked if the Federal Circuit complied with DataTern’s request. “It is kind of risky to go to the court and ask, ‘So why did he recuse himself?’” said Holbrook, noting that appellate judges generally prefer to keep such matters private. “From my perspective, no good can come from that.”

DataTern may try to argue that whatever conflict Rader had rendered the entire proceeding unfair, Holbrook said, but that argument would likely be a stretch. On the other hand, DataTern could try to use the information in other litigation that’s been decided or is pending before the court, he suggested.

DataTern is litigating the same patents at issue in the Microsoft case against other companies before the Federal Circuit. The court stayed action on them in January pending the Microsoft v. DataTern decision.

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