Former Chief Judge Takes off Robes and Gloves

Anti-Patent Trash Talk Hurts Economy –

Hon. Paul Michel, Chief Judge for the Court of Appeals for the Federal Circuit (CAFC), who left the bench recently after serving for 22 years has no plans for a quiet retirement.  He has been lobbying congress as a private citizen for patents and patent holders rights, and has been encouraging others to.

The former Chief Judge of the highest patent court believes now is the time to speak out against patent bashing, which, he believes, is motivated primarily by self-interest.

In an interview with Judge Michel conducted by Joe Mullin that appears in the Fall issue of Intellectual Property, a supplement to the September Corporate Counsel, the 69-year old judicial veteran pulls no punches. The piece is called “There Goes the Judge,” no doubt a play on “Here Comes da Judge,” a cultural catch-phrase made popular by comedian Flip Wilson on the “Laugh-In” TV series.

“I think there has been a huge PR campaign against patents and a lot of myths have been created about what patents are and how they work.”

“There are some 30,000 companies in the United States that have at least 100 employees. And 15 of them — ten Silicon Valley-type companies, and a handful of Wall Street financial firms — have driven the entire patent reform debate. What about the other, 29,985?

“… They’re the companies that get sued a lot and lose a lot and have to pay substantial damages in some cases. From their narrow standpoint, maybe a much weaker patent system and low damages and no injunctions look really good. But from the standpoint of the overall economy, I think weakening the patent system looks like a very poor idea.”

My perspective on Judge’s Michel’s recent New York Times op-ed addressing how patents can be used to stimulate the economy by creating jobs will run in the next Intangible Investor, due out in a few weeks.

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  1. I couldn’t agree more with Judge Michel’s view of the handful of companies who have been driving patent reform efforts for the past several years. These companies are motivated by their own selfish interests and do not want to pay others for the use of third party patents. I have written about this problem for several years and have fought the approach these companies have taken to patent reform.

    The myths these companies and the media have perpetuated about too many patents, too much patent litigation, and too many trolls, are just that — myths which are not borne out by the hard facts. There are more patents being filed and issued every year because there are more scientists and engineers working worldwide today than in all of history combined. Of course, there are more inventions being made. As the myth about too much litigation, there are actually fewer cases for patent infringement per patent issued than there was 30 years ago. Any entity that asserts a patent for an invention which it is not producing would be considered a troll. If IBM asserts a patent it is not practicing, does that make IBM a troll? Article I, Section 8 of the U.S. Constitution has no requirement that an inventor make, use or sell his/her patented invention. The whole reason for granting patents is not to ensure the inventor manufactures or sells anything, but simply to provide the rights to exclude others from practicing the claimed invention. It is perfectly legitimate for an inventor to monetize his/her invention by selling or licensing the patent to others. That’s exactly what our patent system is about.

    The patent reform that is really needed is more funding for the USPTO to upgrade the technology it uses and to add human resources to handle the growing level of applications filed annually.

    Those who truly understand the patent system and its function, not only in stimulating innovation, but also investment in that innovation, know that emasculating the U.S. patent system is not in the best interests of 99% of the companies that greatly benefit from our patent system. or the U.S. economy in general. This is especially true in times of a depression, from which the world is currently suffering.

    The Chinese government is in the process of building a strong patent system. Innovation in the U.S. is one of the few competitive advantages we have and we should not weaken that advantage by weaking the U.S. patent system. A strong patent system is in the interests of Americans. We should avoid pandering to the few special interests who oppose the U.S. patent system for their own selfish motives.


  2. Judge Michel’s newfound and seemingly tireless advocacy for patent law and the patent system is much appreciated. It’s in no small part due to his assiduous efforts that patent-related issues such as the USPTO backlog, fee diversion, and patent reform have recently entered the vocabulary of many in the mainstream media.


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