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

Patent assertion entity DataTern has asked the Federal Circuit to rehear en banc its dispute with Microsoft and SAP, saying it’s the only way to remove the “taint” of former Chief Judge Randall Rader’s subsequently disclosed conflict of interest with Weil, Gotshal & Manges partner Edward Reines, who represented the two tech companies.

Rader resigned as chief judge last month, acknowledging that he had been “inexcusably careless” by sending an email to Reines praising his advocacy skills and appearing to offer his personal endorsement. The court also withdrew decisions in two cases Reines had litigated before three-judge panels that included Rader, including Microsoft v. DataTern. The court then reissued the same ruling, mostly favoring the two tech companies, while removing a dissent Rader had written urging the panel to go further.

On Wednesday, McCarter & English partner Lee Bromberg argued that the court had not done enough to cure the problem. “The friendship between Judge Rader and counsel for Microsoft and SAP was close enough that Judge Rader apparently disregarded the judicial code of conduct by sending an email to favor his friend,” Bromberg wrote. Noting that Rader had signed the email “your friend for life,” Bromberg argued that the potential conflict predates the November 2013 argument in the case, so Rader never should have participated.

Instead, Bromberg wrote, Rader articulated during the argument the rationale advanced in the majority opinion: that DataTern made certain concessions during claim construction. DataTern insists it made no such concessions.

Rader acknowledged in his apology that the email “may have led to the perception that the attorney in question was in a position to influence me in my performance of judicial duties.” Under those circumstances, Bromberg wrote, “the reissuance of an opinion that Chief Judge Rader participated in and apparently influenced in substance does not remedy the appearance of impropriety.”

The ruling OKed declaratory judgment actions SAP and Microsoft filed against DataTern after the PAE made litigation threats against the companies’ customers. Bromberg asked the full court to vacate its judgment and reassign the case to a new three-judge panel.

A new hearing leading to a new outcome is probably a long shot. Although he admitted an appearance problem, Rader maintained in his apology that he “did not and would never compromise my impartiality in judging any case before me.”

“I’d give DataTern a one-in-a-hundred chance of prevailing before a fresh panel with this tactic,” said Berkeley patent attorney Andrew Dhuey, who’s not involved in the case. “But then again, that’s infinitely better than none-in-a-hundred.”

Contact the reporter at sgraham@alm.com.