Federal Circuit Judge Evan Wallach Taking Senior StatusMarch 18, 2021

Seat 9 of the Federal Circuit is being vacated by Judge Evan Wallach, who was appointed by President Barack Obama and will take senior status. President Joe Biden will thus be tasked with nominating the seat’s next holder. The seat will be officially vacated on May 31, 2021.

The last seat to open up on the Federal Circuit was filled by Judge Kara Fernandez Stoll in 2015. President Donald Trump was never afforded the opportunity to appoint a Federal Circuit Judge. Appointments to the Federal Circuit are hardly the most political judicial appointments that must be made. For example, Judge Fernandez Stoll was approved by the United States Senate 95–0.

The perceived apolitical nature of appointments to the Federal Circuit STEMs from the fact technical qualifications can be just as important in appointing a Judge as legal qualifications. Since the America Invents Act went into effect in 2012, patent appeals in the Federal Circuit have risen from taking up about a third of the Federal Circuit’s docket in the 1980s to now taking up about two thirds of the court’s docket, according to Judge Chen. Like attorneys at MVS, many Federal Circuit Judges have a technical background in science or engineering. Judge Fernandez Stoll and Judge Raymond Chen, who was also appointed by President Barack Obama, both have degrees in Electrical Engineering. The most recently appointed USPTO Director, Andre Iancu, has a background in Aerospace Engineering. These technical backgrounds are heavily relied upon to carry out the duties required of USPTO officials and Federal Circuit Judges, the latter of whom are responsible for all patent appeals relating to examination of patent applications within the USPTO.

If, however, one were interested in keeping score, Democratic presidents have been responsible for appointing 7 of the 11 remaining seats on the Federal Circuit. Republican presidents have been responsible for appointing just 4. After President Joe Biden appoints the 8^th (of 12), 7 of the Court’s most junior Judges will be appointed by Democratic presidents.

President Biden now has two major decisions to make concerning the country’s future policy on intellectual property. The first is filing the vacancy of Judge Wallach’s seat. The second is to appoint the next director of the United States Patent and Trademark Office (USPTO).

Though unlikely, President Biden could perhaps score some easy political points with those across the aisle by nominating Trump-Appointed USPTO Director Andrei Iancu to either position. Director Iancu was largely seen as a success in the intellectual property world because of his efforts related to the 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG).

Gregory “Lars” Gunnerson is a Patent Attorney in the Mechanical and Electrical Patent Practice Groups at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Lars directly via email at gregory.gunnerson@ipmvs.com.