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Patent Law

: Patently Obvious

Federal Circuit Judge Kathleen O'Malley

By Dennis Crouch, Esq.

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The White House today announced that Judge Kathleen (Kate) O'Malley (N.D.Ohio) is the nominee to fill the empty judgeship position on the twelve-member Court of Appeals for the Federal Circuit. The position was previously filled by Judge Schall. Chief Judge Michel has announced that he will retire this Spring. The Senate is expected to confirm Judge O'Malley without significant opposition.

Judge O'Malley wrote an interesting dissent while sitting by designation in Ormco Corp. v. Align Technology. In the dissent, Judge O'Malley argued that the majority had unreasonably applied the doctrine of prosecution disclaimer - writing that "prosecution disclaimer requires a patentee to clearly and unmistakably disavow certain interpretations, and I find no such disavowal here."

The following is the Whitehouse press release:

FROM: The White House, Office of the Press Secretary, For Immediate Release March 10, 2010

President Obama Nominates Raymond Lohier, Jr. for the United States Court of Appeals for the Second Circuit, Judge Kate O'Malley for the United States Court of Appeals for the Federal Circuit

WASHINGTON, DC - Today (March 10, 2010), President Obama nominated … Judge Kate O'Malley to the United States Court of Appeals for the Federal Circuit. … O'Malley currently serves as a U.S. District Judge for the Northern District of Ohio.

"Raymond Lohier and Kate O'Malley will both bring an unwavering commitment to fairness and judicial integrity to the federal bench," President Obama said. "Their impressive legal careers are a testament to the kind of thoughtful and diligent judges they will be on the Second and Federal Circuits. I am honored to nominate them both today." …

Judge Kate O'Malley: Nominee for the United States Court of Appeals for the Federal Circuit Judge Kathleen McDonald O'Malley has served as a U.S. District Judge for the Northern District of Ohio since 1994. Judge O'Malley also regularly teaches patent litigation at Case Western Reserve University School of Law as Distinguished Visiting Jurist.

Prior to her appointment to the District Court, Judge O'Malley was First Assistant Attorney General and Chief of Staff to then-Ohio Attorney General Lee Fisher. In that role, she supervised all litigation for the State of Ohio and counseled senior government officers on legal questions. Until 1991, she was in private practice in Cleveland at Porter, Wright, Morris & Arthur LLP and at Jones Day. After law school, she clerked for the Honorable Nathaniel R. Jones on the U.S. Court of Appeals for the Sixth Circuit.

On the District Court, Judge O'Malley has handled numerous intellectual property cases, including while sitting by designation with the U.S. Court of Appeals for the Federal Circuit. The United States Judicial Panel on Multidistrict Litigation has called on Judge O'Malley to preside over several complex nationwide matters. Judge O'Malley graduated from Kenyon College in 1979 (Phi Beta Kappa) and Case Western Reserve University School of Law in 1982 (Order of the Coif).

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