"Do not cast me off in old age; when my strength fails, do not forsake me!" (Psalms 71:9) אַֽל־תַּ֭שְׁלִיכֵנִי לְעֵ֣ת זִקְנָ֑ה כִּכְל֥וֹת כֹּ֝חִ֗י אַֽל־תַּעַזְבֵֽנִי׃
One of my favorite albums (if you don’t know what a vinyl record is, Google it) is a collection of canzonas by the 17th century composer Giovanni Gabrieli, arranged for brass ensemble and recorded in 1969. Apart from the spectacular playing, the recording is remarkable in that it features the entire brass sections of three major symphony orchestras (Chicago, Cleveland and Philadelphia), whose players were somehow able to clear their schedules to get together for a day in Philly. Many of the players on that album are legendary among brass players, inter alia Abe Torchinsky, Myron Bloom, Dale Clevenger, Bud Herseth, Mason Jones, and Arnold Jacobs.
Having been recorded more than 50 years ago, most of the musicians on the album are no longer with us. Amazingly, however, one of those players is not only still around, but still active: at age 82 or so, by which age most brass players would have long since retired, Jay Friedman is still the principal trombone player of the Chicago Symphony, where he has played since 1962 (!). Here’s a picture of him at a CSO concert I attended last month, in which he (and the rest of the CSO) played the @#$% out of Dvorak's ninth symphony ("From the New World").
One feature of symphony orchestras, especially those at the apex of the profession like the CSO, is that it becomes apparent very quickly when a musician can no longer perform at the necessary level. In the CSO’s case, to help mitigate the incentive to keep the job when it’s time to move on, the orchestra provides a generous retirement package. I assume that when the time comes, Mr. Friedman will step aside, but until then, as we said in the 70’s, keep on truckin’!
This leads to the big news that came out of the Court of Appeals for the Federal Circuit last week: not a groundbreaking patent law decision, but the fact that the court’s chief judge, Kimberly Moore, is seeking to force judge Pauline Newman out of her job. You can read the court’s announcements on the matter here, here and here, but basically, the assertion is that, at the age of 95, Judge Newman is no longer able to pull her weight, and is allegedly even suffering mental lapses. Gene Quinn broke the story on his blog (here and here), and the comments in those pieces include remarks from people who have seen and heard Judge Newman recently, who state that she’s still on the ball.
I don’t know the inner workings of the CAFC, and I don’t personally know any of the CAFC judges, nor have I seen Judge Newman herself recently. However, as a long-time follower of the CAFC, I think that Judge Newman has long been the sharpest judge on the court. I also know most of the CAFC judges who ostensibly have IP experience from private practice have experience as litigators, which is a different role than preparing and prosecuting patent applications. As in-house counsel at FMC corporation for 30 years, including as head of the patent department for 15 years, Judge Newman has more patent procurement experience than any other judge on the court, and possibly more than all the other judges combined. In her decisions she rarely gets things wrong, and a dissent from her almost always means that her colleagues in the majority are in error. Frankly, it’s a shame there haven’t been more judges like her on the CAFC.
The Talmud relates how the amora Rav Yosef (bar Hiyya) suffered a sickness (perhaps a stroke) that caused him to forget much of he knew, so that his student Abbaye (who became one of the two leading scholars of his own generation) had to re-teach him what he himself had taught Abbaye. Yet it’s clear that other scholars continued to involve him in discussions, even though Abbaye would sometimes have to remind Rav Yosef of things that Rav Yosef himself had taught when he was younger.
It could turn out that Judge Newman’s younger colleagues are conniving cutthroats; it could be that Judge Newman is still sharp but that physical infirmity is taking its toll on her ability to work, and that taking senior status (which allows for a lighter workload) is appropriate; it could be that her mental acuity is also in decline and that it’s time to retire. We shall see in the coming months if this incident marks the unfortunate but inevitable end of Judge Newman’s career, if it stains the court itself, or both. For those of us who work in the trenches of patent prosecution, Judge Newman will have our respect even after she’s no longer hearing cases.
And, to slightly twist the verse at the start of this post, the patent community thanks her for not having abandoned us in her old age.