The Federal Circuit is the only federal appellate court that has never had an African American judge serving on it.  President Biden’s nomination of Chicago litigator Tiffany Cunningham, however, fixes this aberration while adding a seasoned patent litigator to the court.

Background

Tiffany P. Cunningham received a B. Sc. from Massachusetts Institute of Technology in 1998 and received a J.D. from Harvard Law School in 2001.  After graduating, Cunningham clerked for Judge Timothy Dyk on the U.S. Court of Appeals for the Federal Circuit.

After her clerkship, Cunningham joined the Chicago office of Kirkland & Ellis as an Associate.  In 2007, Cunningham became a Partner with the firm.  In 2014, she shifted to become a Partner with Perkins Coie, where she currently works.

History of the Seat

Cunningham has been nominated for a seat on the U.S. Court of Appeals for the Federal Circuit.  The seat will open on May 31, 2021 when Judge Evan Wallach moves to senior status.

Political Activity

As of 2021, Cunningham has donated relatively rarely to political candidates, making a contribution to President Obama in 2012, and to Hillary Clinton in 2016.^[1]

Legal Career

After her clerkship on the Federal Circuit, Cunningham has spent the next twenty years of her career as a patent litigator, serving this role both at Kirkland & Ellis and at Perkins Coie.  Between these two positions, Cunningham has represented plaintiffs and defendants across the country in patent litigation.  

For example, while at Kirkland & Ellis, Cunningham was part of the legal team for Caterpillar, Inc. who successfully persuaded the Federal Circuit to reverse a jury decision finding that the company had misappropriated trade secrets and breached its contract.^[2]  On the district court level, Cunningham defended Syngenta Crop Protection LLC in a patent infringement lawsuit brought by Bayer Cropscience Inc.^[3]  

Similarly, while at Perkins Coie, Cunningham represented Intel Corp. before the Delaware Chancery Court in a dispute over the technology used in Wi-Fi products.^[4]  

Overall Assessment

Perhaps because of the court’s specialized docket, nominees to the Federal Circuit don’t usually attract the same degree of controversy as nominees to the other courts of appeals.  Cunningham, who has extensive experience in the court’s IP-heavy docket, is unlikely to break this pattern, and will likely be confirmed with broad support.

[1]Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=Tiffany+Cunningham&cycle=&state=IL&zip=&employ=&cand= (last visited Apr. 3, 2021).

[2]See Caterpillar Inc. v. Sturman Indus., 387 F.3d 1358 (Fed. Cir. 2004).

[3] See Bayer Cropscience, Inc. v. Syngenta Crop Prot. LLC, 979 F. Supp. 2d 653 (M.D.N.C. 2013).

[4] See Jeff Montgomery, Intel Wins Early Round in Chancery Suit Over Sanyo License, Law 360, Mar. 1, 2021. See also Sanyo Elec. Co. Ltd. v. Intel. Corp., C.A. No. 2018-0723-MTZ, 2021 Del. Ch. LEXIS 35 (Del. Ch. Feb. 26, 2021).