In High Demand (Photo by Bill O’Leary/The Washington Post via Getty Images)
It is an understatement to say that Pauline Newman is highly recognized as being good at her job. So good in fact, one patent-pursuing litigant argues, that her absence from the court means that he didn’t get a fair shake at arguing his case. An application of the Alice test determined that his idea was too abstract to be patentable, but he’s pushing back on the use of that test. Know who else has voiced concern over Alice? That’s right, Newman! And he’s asking the Supreme Court to make sure she’s on the panel so that she can weigh in. Bloomberg Law has coverage:
The owner of an invalidated background-check software patent urged the US Supreme Court to consider the Federal Circuit’s suspension of 97-year-old Judge Pauline Newman, whose absence on the court the company says deprived it of a potentially sympathetic ear.
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Miller Mendel was robbed of “even having a chance that the most experienced appellate patent judge, and one of the harshest critics of Section 101 jurisprudence, could participate, hear, and rule on the case,” the company wrote in a petition to the high court docketed Oct. 18.
Suing over loss of chance isn’t unheard of — it is an action in tort — but suing because you didn’t have the judge you wanted on your panel feels suspect. That said, it puts the U.S. Court of Appeals for the Federal Circuit in a strange position. Far from the initial worry that Justice Moore & Co.’s now objectively disproven accusations that Judge Newman was mentally unfit to serve on the court would harm her legacy, we now have the worth of the court being questioned if she’s not a part of it. Even if the panel included Newman and decided against Mendel, Newman’s potential dissent could still be valuable in the long run considering how often the Supreme Court ultimately agrees with her take on matters.
If you’d like to follow up on the case, it is Miller Mendel Inc. v. City of Anna, U.S., 24-439, cert. petition docketed 10/18/24.
Patent Owner Flags Judge Newman’s Suspension to Supreme Court [Bloomberg Law]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.
