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November 28, 2009


CAFC Chief Judge Paul R. Michel, now 68, is retiring when the cherry blossoms next bloom in the nation's capitol. Having written 800 opinions, he is considering starting his own IP think tank. "Once I'm a retired judge, I can make a public nuisance out of myself. I think that's needed." Certainly the politicians threatening to trample this country's patent system could benefit from the wisdom on offer.

Michel thinks Congress ought to tread very carefully with its so-called patent reform. ""If they get it a little wrong, it will do a lot of harm." No clean sweep is needed by politicians. Michel thinks the courts are able housekeepers of the patent system: "We [the courts] can continue to adjust, modify and clean up unintended consequences." Michel noted Congress as a corporate captive in considering patent legislation: "No judge was ever called as a witness, which seems to me a bit odd. It's mostly corporate people from a limited number of companies."

One proposed reform which Michel rejects is interlocutory appeal from any district court claim construction.

It would provide for an interlocutory appeal from any claim construction ruling in any case at any stage in the District Court. And if it is enacted, there is a risk that the Court would be inundated with an untold number of appeals, perhaps doubling or tripling our current filings. The proposal was based on the idea that where claim constructions are dispositive, it's important to have an early appeal, rather than go through the expense and trouble of trial, which of course is right. But what may not have been so clear to the Senate because, of course, like the Court, they're the victim of what they're told by other people and sometimes it's hard to sort things out. But the majority of the appeals that we receive every year are already interlocutory appeals, because they come from grants of summary judgment based on claim construction. So we already have an automatic interlocutory appeal provision. So what the Senate bill, as I estimate, would do is to give us appeals in cases in which the claim construction is not dispositive of infringement. Because if it were, summary judgment likely would be granted. And regardless of the exact details, if the Court gets a double or triple load, we can't handle it.

A refreshing reality check from an insider: heavy-handed lobbied politicians, like judges who have to drink from the fire hose of litigation lawyer drool, being "the victim of what they're told by other people and sometimes it's hard to sort things out."

Chief Judge since 2004, one of Michel's inspired judicial reforms has been mandatory mediation. The result: 30 to 40 cases settle before rolling their battlewagons into court. "We can't make them settle, but we can make them show up."

CAFC Judge Randall Rader will succeed Michel as chief judge June 1st.

Download recent remarks by Chief Judge Michel at the D.C. Mayflower Hotel.

Posted by Patent Hawk at November 28, 2009 12:12 AM | The Patent System


Before any changes are made to the patent laws we should wait until the dust settles in view of new PTO management and the SupCt decisions of the past few years and of the upcoming year.

Posted by: patent prosecutor at November 29, 2009 4:03 PM