An irreproachable candidate and a unifying call for more diversity in intellectual property
“Unlike the majority of current Federal Circuit judges, Cunningham has nearly 20 years of experience in intellectual property litigation representing industry giants including Intel, Microsoft, Amazon and Panasonic in federal courts…. [This should] inject a practical perspective and enhance the Court’s understanding of the client interests at stake in these cases.
On March 30, 2021, President Biden called on Tiffany Cunningham to be the first African American to sit on the Federal Tour. After a quick and easy hearing, the Senate Judiciary Committee then advanced Cunningham’s nomination with a 16: 6 vote. With her confirmation now looming, Cunningham is set to become the first African American and the first African woman. -american to join the bench of the Federal Circuit. Now that she has reached this historic milestone, this article takes a look at the significance and impact of Cunningham’s appointment.
Senator Cory Booker described Cunningham as a “history maker” and an “extraordinary human being in every way”. And she is. Cunningham, Chartered Patent Attorney and Intellectual Property Lawyer, has been a partner at Perkins Coie since 2014 and currently serves on the firm’s executive committee. Prior to that, Cunningham was a partner and partner at Kirkland & Ellis LLP and also served as a clerk for Federal Circuit Judge Timothy Dyk. Cunningham has had a busy career as trial and appellate counsel in complex patent and trade secret litigation involving a myriad of technologies, including pharmaceuticals, IT and automotive engineering. and mechanical. With a law degree from Harvard and a chemical engineering degree from the Massachusetts Institute of Technology, Cunningham’s legal and technical credentials are impeccable.
Although she is undeniably a very successful litigator, Cunningham told the Senate Judiciary Committee that joining the Federal Circuit has long been her “dream job.” In the same breath, Cunningham noted that while working for Judge Dyk, she faced the federal circuit’s lack of diversity with “all white judges and only two women.” But Cunningham was not discouraged and instead placed securing the role on his “mental vision board” in the hope “that one day [she] could be a judge of this Court.
It would take 20 years for Cunningham to realize his dream – the Federal Circuit being the last US federal appeals court to have its first African-American judge. Senator Booker lamented this late progress during Cunningham’s confirmation hearing when he expressed a “sense of exhaustion and elation” that we still count “the first black person” to take a particular milestone after 250 years of American history. Like the Federal Circuit Bench, the Intellectual Property (IP) Bar that appears before it was sorely lacking in diversity – only 1.8% of all IP lawyers are African-American according to 2017 data from the American Intellectual Property Law Association (AIPLA). As for African American women practicing intellectual property law, alarmingly, this author could not find any reported data. So while Cunningham’s appointment is a welcome and deserving “first”, it highlights a 40-year shortage of diversity on the court and a chronic shortage of African-American female lawyers in the intellectual property bar.
Gender parity for the CAFC
Cunningham’s confirmation is also notable in that it adds another woman to the federal bench. Fortunately, the Federal Circuit has made great strides in gender diversity since Cunningham’s days as a clerk – nearly half of the judges on the Federal Circuit are women, including current Chief Justice Kimberly Moore. . The Court will achieve full gender parity with the addition of Tiffany Cunningham. Beyond the judiciary, significant progress has also been made in improving gender diversity in intellectual property law positions at the United States Patent and Trademark Office – recent reports estimate that 38% of PTAB judges are women. The IP bar, however, cannot boast of similar statistics. According to AIPLA, women make up about 30% of intellectual property attorneys (including patents, trademarks and copyright) in law firms (J. Shontavia Johnson, Tonya M. Evans and Yolanda M . King, “Diversifying Intellectual Property Law: Why Women of Color remains ‘invisible’ and how to provide more seating at the table, 10 Landslide 4, 31 (2018)). However, the American Bar Association reports that only 21.8% of registered patent attorneys are women (Elaine Spector and LaTia Brand, 13 Landslide 1, (2020)). The numbers are worse when you consider the percentage of women in the management of law firms. Only 19% of equity partners in all areas of law are women. And, over the past decade, women have argued only 12.6% of all patent appeals before the federal circuit and less than 10% of patent appeals on behalf of private entities. Worse yet, the proportion of women making such appeals tends to decline: from 2014 to 2016, women presented almost 20% of all oral pleadings before the federal circuit, but in 2017-2019, less than 14% were pleaded by women.
President Biden appears to have recognized this diversity crisis in law, and in his first four months appointed as many minority women to the federal bench as President Trump did throughout his presidential term. Fifteen of its 19 nominees to date are women, including 11 women of various racial and ethnic backgrounds. And of Biden’s seven candidates for US appeals courts, six are women, four are ethnic minorities, and three are African Americans. Biden also pledged to appoint the first African-American woman to the Supreme Court. But executive action to increase diversity in the justice system will not remedy the lack of diverse candidates in the justice pipeline.
Law firms lag behind when it comes to diversity
Although most large law firms and clients have invested in diversity programs, statistics suggest that these efforts have not borne fruit in producing more diverse law firm leadership, particularly in law. of intellectual property. We must do more. Tiffany Cunningham’s elevation to the Federal Circuit can and should inspire law firms (and their clients) to ensure that a variety of attorneys gain more experience in high-level litigation roles, including appearing in court. district and appeal. We also have a responsibility to better educate diverse students about the opportunities that STEM degrees can offer, including opportunities in patent law. And the courts can support these efforts. For example, the Federal Circuit recently overturned its decision to rule on an appeal on factums in order to provide a miscellaneous junior lawyer with the opportunity to plead orally. Google and its lawyers had asked the court to reconsider its order because the most competent lawyer was a partner of Perkins Coie who “ha[d] has yet to argue a federal circuit appeal, “and Google and its outside law firms… are working together to increase the involvement of.. junior and miscellaneous lawyers in their appeal cases. Other examples of this type of public-private teamwork are needed to provide meaningful opportunities to various intellectual property lawyers.
In addition to bringing much-needed diversity to the judiciary, Cunningham’s legal training will enrich the courts in other important ways. Unlike the majority of current Federal Circuit judges, Cunningham has nearly 20 years of experience in intellectual property litigation, representing industry giants including Intel, Microsoft, Amazon and Panasonic in federal courts. She also has experience in Hatch-Waxman litigation, having successfully represented ViiV Healthcare in a case against generics, Lupine and Teva. Since the lion’s share of Federal Circuit appeals are patent litigation, Cunningham’s actual experience in this area should inject a practical perspective and enhance the Court’s understanding of the client interests at stake in these cases. With a chemical engineering degree from MIT, Cunningham also adds another technical background to a tribunal that has a lot of electrical engineers. The addition of a chemical engineer with practical experience in pharmaceutical litigation should also help resolve the large number of Hatch-Waxman appeals that come before the courts.
As for Cunningham’s likely impact on Federal Circuit jurisprudence, his confirmation hearing unsurprisingly provided little clue. When asked about her take on a handful of hot patent topics, Cunningham carefully reiterated that she would faithfully apply the law to the facts of every case before her. She did, however, allude to her “general” point of view on certain issues.
Senator Grassley asked Cunningham if she thought it was appropriate for district judges to actively create favorable patent places in their districts. The senator’s comment was likely aimed at judges at patent litigation hot spots in the Districts of West and East Texas, which attract a large number of patent cases and recently made headlines for delay and refuse transfer motions. Cunningham responded that district court judges “should focus on applying the law to the facts of each case without  take into consideration  what types of cases they might want to appear before them. This comment suggests that Cunningham might agree with recent Federal Circuit reprimands against Judge Alan Albright’s refusal to transfer a number of patent files out of the Western District of Texas.
Cunningham’s response to Senator Coombs’ question about whether the Federal Circuit should clarify the standard for patent eligibility under 35 USC §101 is also interesting. Cunningham said the “area deserves attention” and noted that the Supreme Court is currently considering dealing with this issue (in American Axle v. Neapco), hinting that she, along with much of the current Federal Circuit Bench and the broader patent community, would like clarification on Section 101 of the country’s highest court. Notably, Cunningham has real-world experience with Section 101 issues – in 2015, she defended patents on drug testing methods against a motion for summary judgment for invalidity under Section 101.
Don’t let her be the last
It remains to be seen how Cunningham will rule on these and other patent law issues. What is certain is that Cunningham’s appointment provides visibility on the national scene of an exceptionally well-qualified and diverse lawyer filling a high-level judicial position. While this is a cause for celebration, this momentous occasion should not be wasted on self-congratulation, but rather should give impetus to new public and private efforts to increase diversity at the highest levels of the world. intellectual property bar. Without an immediate supply of diverse and qualified candidates, we always risk seeing that important “first” become a “last”.