Judge O'Malley: "Absurd" that Supreme Court Won't Address Section 101 Patent Eligibility

Judge Kathleen O'Malley retired from the U.S. Court of Appeals for the Federal Circuit in March 2022. She recently spoke with Dani Kass at Law360 and gave a wide-ranging interview that included, most relevant to this blog, comments on Section 101 patent eligibility. And she did not hold back.

Judge O'Malley said that the Federal Circuit has "done the best it can" with what the U.S. Supreme Court has provided – i.e., Alice. And despite begging the Supreme Court for further guidance, the Supreme Court hasn't received it. She commented, "Have you ever seen all 12 active judges on a single circuit beg the Supreme Court for guidance, and the Supreme Court say no? It's absurd."

On the issue of making law, she noted that "most of the jurists on the Federal Circuit – whether they're Democrat or Republican, or whether they're considered to be more pro-patent or anti-patent – they're conservative jurists. … We can't make the law."

Judge O'Malley was similarly direct on a number of other topics: the U.S. District Court for the Western District of Texas, patent injunctions, Fintiv, Rule 36 judgments and beyond. The entire interview is a rare view into the mind of a Federal Circuit judge and well worth your time.