Summary:

Legal uncertainties about the patent system are hindering innovation in important technology sectors like smartphones and tablets. Yet for t…

U.S. Capitol Building
photo: Wikimedia / Kmccoy

Legal uncertainties about the patent system are hindering innovation in important technology sectors like smartphones and tablets. Yet for the past two years the country’s most important patent court has been short staffed because the Senate will not confirm nominees. Now, after more than a year of waiting, one well-qualified candidate is pulling out.

Highly-regarded patent blog, PatentlyO, reported this weekend that judicial candidate Edward DuMont wrote President Obama to say he was withdrawing his nomination after waiting almost two years to join the U.S. Court of Appeals for the Federal Circuit.

DuMont had all the makings of an exemplary judge. He is a veteran intellectual property litigator with a top law firm and was declared to be “unanimously well qualified” by the American Bar Association. He is also a distinguished graduate from Yale and Stanford and has clerked for Richard Posner, the conservative appeals court judge and intellectual giant. So what happened?

DuMont reportedly withdrew his nomination because he did not want to draw out a process any longer in which “inaction results from opposition on the part of one or more members of the [Senate Judiciary] Committee minority.”

This appears to be DuMont’s diplomatic way of saying that he gave up because the Senate won’t confirm an openly gay judge. Currently, there are a handful of gay federal judges but none at the appellate level — and it appears it will remain this way on the basis of an asinine rationale. As Professor Dennis Crouch of PatentlyO explained earlier this year:

The delay has been entirely behind the scenes and no Senator has been bold enough to publicly announce the ridiculous position that homosexual men should not be allowed to judge patent appeals.

A spokesperson for Senator Chuck Grassley (R-Iowa) has reportedly said the delays in the DuMont nomination were sparked by “questions about his background.”

DuMont’s withdrawal comes at a time when the technology industry is desperately looking to the judiciary for guidance on the patent system. Major companies from Google (NSDQ: GOOG) to Apple (NSDQ: AAPL) to Amazon (NSDQ: AMZN) are embroiled in lawsuits with each other and are also in court fighting off patent trolls (shell companies that don’t make anything but sue large firms for a living). The Federal Circuit is the court where appeals involving all of these cases are heard and controversies resolved. The court is supposed to have twelve sitting judges but for the moment only has ten.

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