Recusal Challenge Based On Technical Intern's Prior History Must Evidence A High Level Of Partiality

The U.S. Court of Appeals for the Federal Circuit, in a

non-precedential opinion, affirmed the district's denial of

Uniloc's motion for recusal based on contacts with Microsoft by

the district judge's intern assigned to the case. Uniloc

USA, Inc. and Uniloc Singapore Private Limited., Case No.

08-1121 (Fed. Cir., Aug. 7, 2008) (Moore, J.; Michel, C. J.,

dissenting-in-part.)

The district court hired an intern to aid the judge in resolving

certain technical details that arose when Uniloc sued Microsoft for

infringement of a patent relating to software activation

technology. The unpaid intern was an evening law student and was

finishing his Ph.D. in computer science.

After objecting to the hiring of the intern, Uniloc filed a

motion to recuse the judge from the case. Uniloc objected to the

intern, and ultimately the judge, because it believed the intern

possessed "financial and contractual relationships" with

Microsoft. These relationships included the receipt of royalty

payments by Microsoft Press pursuant to publishing contracts for

four programming guides co-authored by the intern that were

published 9-11 years ago. the assignment of copyrights for his

books to Microsoft, a generic expression of thanks to certain

Microsoft and Microsoft Press employees in his books, an expression

of admiration for Microsoft products in articles written and

published by him in Microsoft journals and indirect financing for

his graduate studies from a Microsoft research grant scheduled to

expire before the start of his summer internship with the district

court.

The Federal Circuit, applying the First Circuit's rule that

a judge is required to step down "only if the charge against

her is supported by a factual foundation and the facts provide what

an objective, knowledgeable member of the public would find to be a

reasonable basis for doubting the judge's impartiality,"

focused on the fact that the intern had never worked for Microsoft

himself and that none of his publications related to

Microsoft's Product Activation technology such that he might

have personal knowledge of disputed evidentiary facts in this

case.

Also, the Court noted that it was the district judge, not the

intern, who was...