Patent Law

28 USC 44(c) provides that any newly appointed Federal Circuit judge must live within fifty miles of the District of Columbia. This rule appears to unduly limit the judges that may be appointed to the CAFC.  Other circuits also have residency requirements, but those circuits serve only a limited geographic area. And, the geographic boundaries of the regional circuits are often quite large. The Tenth Circuit, for instance meets in Denver, but Judges may reside 900 miles away in southern Oklahoma. Likewise, the First Circuit, which sits in Boston, includes one judge who resides in Puerto Rico. The other ‘national’ appellate court — the DC Circuit — has no residency requirements.

The Senate’s version of Patent Reform would eliminate the Federal Circuit residency requirement. From the Committee Report:

Without casting any aspersions on the current occupants of the Federal Circuit bench, the Committee believes that having an entire nation of talent to draw upon in selecting these judges could only be a benefit. The duty stations of the Federal Circuit judges will, of course, remain in the District of Columbia. Judges in regional circuits often travel considerable distances for court sessions within the circuit, far from their homes and chambers, and there is no practical reason why Federal Circuit judges could not do so as well. Discussion of changes Section 11 of the Act eliminates the residency restriction for Federal Circuit judges by repealing the relevant portion of subsection 44(c) of title 28.

Hal Wegner has often argued that the geographic limitation should be eliminated:

“There should be no special geographic limitation on the residence of Federal Circuit judges. To those who would say that it is important that judges live close to a central courthouse to be with all their colleagues[, that notion] goes against the reality of most circuits. For example, the Seventh Circuit sits in Chicago, yet six of the regular members of the court have chambers outside Illinois, four in Wisconsin and two in Indiana. The Third Circuit, which generally meets in Philadelphia, has members with chambers in New Jersey and Delaware, and one with chambers 300 miles away in Pittsburgh.”

The appointment process will be especially important over the next several years as several of the current judges move to senior status. Within two years, most of the current judges will be eligible for senior status.  (I sincerely hope that these experienced judges continue their decisions without slowing down.)