A Spectator’s Guide to the Myriad Oral Argument

On Monday at 10 a.m., the lawyers for both sides will argue the Myriad case (Association for Molecular Pathology v. USPTO) before a three-judge panel of the United States Court of Appeals for the Federal Circuit in Washington. Here are a few things about oral argument in general, and this case in particular, that interested observers may want to keep in mind.

Who’s on the Panel? Federal cases on appeal are almost always heard initially by a panel of three randomly selected judges. (In rare cases all the judges of a circuit will rehear the case together, or en banc—no way to predict if that will eventually happen here.) The Federal Circuit will announce the panel for this case on Monday morning on its website. As of now, all we know is that Myriad—and only Myriad—will be heard by “Panel B+.” The + means that the makeup of that panel will be different from that of Panel B, which will hear the three other cases also scheduled for this 10 a.m. session (a panel customarily hears four arguments in a session). The + designation sometimes means that one member of the regular panel (here, B) has recused (disqualified) him or herself from the case because of some conflict, necessitating a replacement.

Chief Judge Rader has already been the subject of a recusal motion by the Myriad plaintiffs (see below), and there is also speculation that the lawyer spouses of two other judges (O’Malley and Moore) may have been involved in the filing of amicus briefs. Another possibility is that the + indicates that Myriad has been assigned to a five-judge panel, a rare expedient.

As soon as the panel is announced, expect journalists to start researching what, if anything, the three members have said about gene and methods patents in prior opinions. For example, Allison Dobson and I wrote in August 2010 about a dissent by Judge Dyk in a case involving a patent on isolated pig virus DNA. In that case (Intervet v. Merial) (pdf), Judge Dyk suggested that “whether the isolated DNA molecule, separate from any applications associated with the isolated nucleotide sequence (for example, the production of a vaccine) is patentable subject matter” is an undecided question of law—a controversial statement, given the PTO’s longstanding policy of granting such patents, with apparent Federal Circuit acquiescence. The point is that Judge Dyk’s appearance on the Myriad panel would provoke a lot of speculation.

So also with Chief Judge Rader. Back in August 2010, the Myriad plaintiffs filed a motion to have him recuse himself from participating in the case because of comments he made at two legal conferences—one sponsored by the Biotechnology Industry Organization—that the plaintiffs said indicated a preexisting view that the Myriad district court decision was wrong. As we wrote at the time, his comments were so abstract that the argument seemed far-fetched. The Federal Circuit announced that it would do nothing unless and until he were assigned to the panel, and there has been no further news beyond the enigmatic +.

How Much Difference Does Oral Argument Make Anyway? Over the course of 20+ years studying the legal profession I’ve interviewed many appellate judges about the process. They all say that they go into oral argument with an open mind, ready to be persuaded. But they also acknowledge that they’ve studied the briefs and the record and have received summaries (“bench memos”) from their law clerks, so they are intimately familiar with the case being argued. The most sensible view is that oral argument can be a balance-tipper. But appellate judges are nothing like trial jurors, who learn all they know about the case in the courtroom.

Pay Attention to the Judges’ Questions—But Not Too Much. Most judges also say that they use oral argument to clarify points they don’t fully understand and to probe potential weaknesses in the parties’ cases. So judges’ questions do reflect issues that are of concern to them.

But don’t read aggressive questioning as indicating hostility toward the side being questioned. That’s just what judges do. That’s especially true if they’ve been law professors—as many Federal Circuit judges have—because that’s part of the “Socratic method” we use in class.

On the other hand, do pay attention to the lawyers’ answers. Do they have persuasive answers to hard questions? If you didn’t think the answer made sense, maybe the judge didn’t, either.

I’ll close with an anecdote that shows the danger of reading too much into oral argument. Years ago I argued a Freedom of Information Act case before the First Circuit in Boston. Future Supreme Court Justice Stephen Breyer was on the panel. He asked a hard question, but I was expecting it and crushed it. He nodded and said, “Good answer.” I thought I had it in the bag. I lost, with Breyer voting against me.