The U.S. Court of Appeals for the Federal Circuit, in a non-precedential opinion, affirmed the district's denial of Uniloc's motion for recusal based on contacts with Microsoft by the district judge's intern assigned to the case.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 the ultimate decision-maker in this case. The Court stated that while certain law clerks have been said to be capable of exerting substantial influence over the judges for whom they work, the same can not be said of interns. They also pointed to the fact that the district judge explicitly made the same point when the judge noted the limited and indirect role that the intern would play in the court's decision-making. These factors led the Federal Circuit to agree with the lower court that no reasonable member of the public could question the judge's impartiality.
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