AM Law Daily

Another Reversal for Judge Manuel Real

by Zach Lowe
August 1, 2008

For the second time in two weeks, and at least the ninth time in the last two decades, U.S. District Judge Manuel Real has been kicked off a case for conduct deemed irresponsible by a higher court. This time, the U.S. Court of Appeals for the Federal Circuit ruled that Real did not follow the law in 2006 when he granted summary judgement for Microsoft after a smaller company accused the Gates behemoth of stealing its technology.

The court remanded the case and kicked Real off of it.

The case began in 2001, when Research Corporation Technologies accused Microsoft of infringing six of its patents on technology that allows printers to print clear images quickly. The company has licensed the technology to Hewlett-Packard, Lexmark and other tech leaders, says Raphael "Ray" Lupo of McDermott Will & Emery, the longtime RCT outside counsel who, with partner Terrence McMahon, handled the appeal.

A district court in Arizona initially granted summary judgement to RCT, but the case was shifted to Real's docket because of scheduling issues, McMahon says.

Real immediately reversed all prior rulings and granted Microsoft summary judgement without any explanation, today's opinion says. Real concluded RCT's patents were invalid because the company withheld information from the U.S. Patent and Trademark Office in its application.

None of this was proper, the appeals court concluded. The information RCT kept from the PTO was not material, and therefore Real had no basis to declare the patents invalid.

"Microsoft's motions for summary judgment were granted without a proper analysis," the judges wrote.

The court vacated attorneys fees Real awarded Microsoft and remanded the case to as-yet-to-be determined judge as requested by the McDermott team.

"We are delighted the court took the view that the case needs a new judge," Lupo says.

As detailed recently in the National Law Journal, Real has been kicked off at least nine cases in the last 22 years. The Conduct Committee of the Judicial Conference of the United States accused Real this year of failing to articulate reasons for his rulings in 72 cases.

A team from Klarquist Sparkman is representing Microsoft in the case.