Former CAFC Chief Judge Michel on Patent Reform

Former CAFC Chief Judge Michel on Patent Reform

Judge Michel on Patent Reform

By Matt Osenga

Federal Circuit Judge Paul R. Michel (ret.) retired from the court on May 31, 2010, just over 13 months ago.  Since that time, he has focused his efforts on speaking and writing about patent reform.  I talked to Judge Michel last month at the Virginia State Bar (VSB) Annual Meeting where he was a speaker on an IP panel.  Judge Michel said that he had no plans to retire from the court as he really enjoyed his work there.  He came to realize, however, that he had a lot to say about patent reform and that it would not be appropriate for him to say everything he wanted to say while a member of the Federal Circuit.  Thus, he stepped down to work as a private citizen on this area that is near and dear to him.

Even before he retired from the court, Judge Michel decried the delays in the patent system and the theft of PTO user fees by Congress.  During the era of bailouts for private companies, he even called on Congress to return the nearly $1 billion that it had siphoned from the PTO during the last 10 years.  This would go a long way toward giving the PTO the resources it needs to reduce application pendency and the backlog that currently plagues the sytem.

Echoing his comments made at the VSB Annual meeting, Judge Michel has been writing a number of articles and blog posts that are highly critical of the current reform efforts in Congress.  He co-wrote an article on the Hill’s Congress blog that argued that both parties are working to stifle job growth.  Fee diversion and inadequate funding to the PTO has led to the enormous 1.2 million application backlog that has kept millions of jobs from being created.  Given the fact that H.R. 1249 cut the prohibition against fee diversion from the patent reform bill, several million new jobs will remain uncreated moving into the future.

Last week, Judge Michel wrote an article that appeared on Patently-O where he decried the special section of H.R. 1249 that permits specialized challenges to business method patents.  This provision favors the financial services sector and is characterized as a big bank bailout.  He also decries the section of the bill that declares all patents on tax planning strategies to be invalid.  Special interests continue to rule Congress and have even been able to invade patent law.

Yesterday, Judge Michel wrote a piece for IP Watchdog where he argues that H.R. 1249 will torpedo patent rights.  The post-grant opposition procedure that is praised for its speed by advocates will do nothing to speed up the process of challenging a patent given the inevitable appeals and unenforceability of the time guarantees.  The bill adds unneeded complexity to patent challenges by adding post-grant oppositions while retaining both ex parte reexamination and inter partes review.  Serial challenges could tie up a patent for nearly its entire enforceable life thereby casting a cloud of doubt over the patent and reducing its value.

The PTO will be overwelmed by these new procedures given the fact that the Board of Patent Appeals already has a staggering backlog of undecided cases.  Add to that the complexity of new patent challenges that will require skills that the administrative patent judges currently are not trained for, make it highly likely that these challenges will bring the proceedings to a near standstill.  The premise for post-grant review proceedings no longer exists.  In 2000, when post-grant oppositions were first proposed, very few inter partes reexamination proceedings were filed.  Now, these proceedings are used regularly to challenge patents.

Judge Michel has regularly spoken out about and has testified about patent reform in the past.  He is not anti-patent reform (few are), but he is anti-H.R. 1249.

As published on Inventive Step:

H.R. 1249 is slated for signature by President Obama after being passed by the U.S. Senate last week.

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