‘Don’t take no for an answer’: Judge Kathleen O’Malley on fighting back

The former US Federal Circuit judge is an inspirational figure in many spheres. She tells WIPR  why, after all her plaudits, she’s just “a nerd who loves the law”.

For many attorneys, former US Court of Appeals for the Federal Circuit Judge Kathleen O’Malley is a familiar name, known for her work on groundbreaking Big Tech cases.

But to others, particularly women in law, the trailblazing Pennsylvania native who prides herself on “fighting every rejection” is far more than that.

A US federal judge for more than 27 years, she was appointed to the US District Court for the Northern District of Ohio in 1994 by President Bill Clinton.

In 2010, she became the first US district judge to be appointed to the Federal Circuit.

She went on to deliver the landmark opinion in the case of Google v Oracle four years later—addressing the question of whether the Java API was eligible for copyright protection.

Now counsel at Sullivan & Cromwell, she also serves as a board member for the Council for Innovation Promotion, a bipartisan coalition dedicated to promoting strong and effective IP rights that drive innovation.

If there was any doubt about her formidable legacy, The Kathleen M. O’Malley Inn of Court was chartered in Cleveland, Ohio in 2021, as a tribute to her service.

‘A nerd who loves the law’

Most would be forgiven for being more than slightly intimidated by such a prestigious CV.

But when O’Malley logs on to chat to WIPR Diversity about her career path and being a woman in IP, it’s clear that her warm and friendly manner and down-to-earth approach could put even the most easily daunted person at ease.

“I am a nerd who loves the law,” she says, laughing before adopting a more serious tone.

“What the law can do to change people's lives and to change the world really does inspire me. It protects people’s lives and fights against tyranny.”

Yet, she is frank about her deep frustration about the sluggish pace towards achieving genuine equity and diversity in the profession she loves.

Reflecting on a speech she gave to her alma mater back in 1995—shortly after her judicial appointment—she ruefully notes that that particular year was deemed the ‘year of the woman’, aimed at “addressing why women are still lagging behind in many areas”.

“The fact that, almost two decades later, we are still recognising this gap is frustrating,” she sighs.

For O’Malley, her career has been characterised by a refusal to accept discouragement or rejection, and she is determined to pass this mindset on to her mentees.

“When I started practising law,” she explains, “there were traditional areas that women went into, and when I said that I wanted to be a trial lawyer, there were very few women that I could look up to who had done the same. Many people said to me, ‘but that's not that's not a women's field’.”

Her reply? “I don't know what you're talking about. Anything should be a woman's field.”

And while O’Malley has more than proved her naysayers wrong, she believes that institutional barriers to women’s progress in law—despite some improvement—still prevail.

The main challenge, as she sees it, is that so many women leave law at the mid-point of their careers—falling into the so-called ‘leaky pipeline’ (a metaphor used to describe the loss of women in science, technology, engineering, and maths).

“When I started in the IP field, I would go to conferences, and I would always joke that ‘the bad news is there are no women, but the good news is there are no lines in the bathroom.’

“That has changed in both good and bad ways—because, yes, there are a lot more women in the legal profession now. But they're still either very young or much older.”

An unfair system

From a young age, O’Malley learned that the world of IP was frequently unfair, perhaps laying the groundwork for her future refusal to accept the status quo.

“My mother was a chemist, and she worked for the government. In doing so, she invented a couple of important things during World War II, including a tyre coating,” she explains.

“But she wasn't even listed on the patents. At the time, she didn't think anything of it, after being told: we need to put these men and the government on the patent. But they were her inventions. She later talked about it when she said she didn't even realise at the time how awful it was.”

It was the societal norm to ignore the role women played when they married and had children, she adds.

“So many women want to have a career and have children, and throwing everything into your creative outlet is difficult when you have the desire to still have a family, and you don't have support. In that regard, there are still institutional changes in law that we need to address.

“Even women who top their class, get into a law firm and are really good at what they do, encounter internal prejudices—because there are still perceptions about how a woman's supposed to behave or speak.”

“But beyond that,” she adds, “law firms aren't great at adapting to the fact that sometimes women have to pull their weight with respect to being a spouse or, or having children. And usually, that means more than half the weight required.”

“Law firms are still not great about giving people more flexibility to either work at home, or to work odd hours. So some women might have to go home or log off at a certain time and then log back on when the children are asleep. I think firms need to get better at understanding that those needs exist.”

‘Firms need to think’

What’s worse, according to O’Malley, is when firms assume that women have other choices such “as going in-house somewhere else”.

“That shouldn't be the default position: women should be encouraged to be full fledged members of law firms. Firms need to think about how to work with women to allow them to be members of trial teams or involved in big deals, and even encourage their clients to maybe offer more flexibility, when they would otherwise make unreasonable demands.”

For O’Malley, mentorship is a crucial component of any successful career in law, and navigating such challenges.

In the early 1980s, she was law clerk to Nathaniel Jones of the US Court of Appeals for the Sixth Circuit and credits the late judge with inspiring and motivating her to never give up.

“He was an icon of the civil rights movement, and he showed me how the law could make huge changes in the civil rights movement, and the same goes for gender diversity.

“We're not quite there yet, but it’s far different than it was in the 1960s. And much of that is thanks to Nate. He inspired me throughout my life and was a lifelong friend.”

His influence was such that today, she views her mentorship activity—rather than the delivery of any much-scrutinised opinion—as her proudest achievement.

“If I had to pick one thing, the most important thing to me is that I served as a mentor for more than 27 years to so many young men and women. The law clerks that I've mentored have remained lifelong friends; they've all accomplished so much.”

Patent eligibility and confusion

Turning to the issue of female inventorship, O’Malley is keen that her work will support the female inventors of the future so they can avoid a similar plight faced by her scientist mother.

For O’Malley, it goes beyond gender, and such encouragement has become an economic necessity.

Pointing to global economies that are losing pace, she notes that this trend includes the US and its standing in the world.

“If the bulk of the people graduating from college right now are women, we need to tap into that brain power. Make them understand that you can innovate for fun if you want, but you can also innovate as a way of life. And, you can start a business, you can run a company. There are lots of options.”

But she is acutely aware that the lack of certainty around patent eligibility doesn’t help women to grapple with a complex system, and has explored the problem with US Patent and Trademark Office director Kathi Vidal.

“She's working on better educating women, especially those in underserved communities to understand the IP process, so they know how to get through it.

“But it's difficult when you tell someone that they have a valid patent, and they build their business on that patent.

“Then all of a sudden, the law changes—and in a very confusing way. I have seen patent after patent being knocked out under these weird changes in the law. My view is if Congress could clarify things, and let everybody know what the true boundaries are, that would help a lot in bringing everybody along in the IP system.”

‘Fight every rejection’

She explains that while it’s “fine and understandable” for the giants of Silicon Valley to say “they don't need patents anymore”, it’s a different story for the young innovators of tomorrow.

“Big Tech can survive with trade secrets, their economies of scale and their largeness, but the new and the young inventors—the people that are going to come with the next best idea—they need the encouragement of the IP system. And so we can't overlook how important it is to the country, our security, and to the world.”

So what does she say to those striving to emulate her enviable career?

“I don't really know what my career path was,” she says, smiling. “My advice is: don't chart a path and be open to opportunities. A lot of things in life are not just about accomplishments, but about relationships.

“In the long run, you may not end up as a federal judge, or you won't always end up being the next great inventor, but you may end up doing something you never dreamed of.’

And her final message to both women in law and female inventors? “Fight every rejection and don’t just accept no for an answer.”

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