On Friday, July 9, 2010, I had the honor and privilege to sit down with the recently retired Chief Judge of the United States Court of Appeals for the Federal Circuit, the Honorable Paul Michel. I met Judge Michel several weeks earlier at the Center for American Progress and we struck up a conversation as we sat waiting for the presentation by United States Patent Office Director David Kappos. I asked Judge Michel if he would consider going on the record with me, and he agreed. After trading several e-mails and a phone call, the interview was scheduled to take place at the University Club in Washington, DC, on July 9. In fact, I interviewed Judge Michel in the Benjamin Franklin room, which seemed particularly fitting.
As I do with all my interviews, I submitted questions in writing to Judge Michel prior to the interview. I was not limited to these questions, but the questions were intended to outline the topics to be covered. I would estimate that the questions were sufficient for a 1 hour interview, which was what was agreed upon. After 1 hour and 40 minutes I had hardly covered one-third of my questions, and I think you will see that we had a very lively discussion about many things, including Judge Michel’s investigation of President Nixon during Watergate, his investigation of Members of Congress during Koreagate, judicial ethics, working for Arlen Specter when he was a District Attorney and then again as a Senator, patent reform, the Patent Office, where things seemed to go out of control for the US patent system and much more. As you will see in Part 4, we even talked about Bilski v. Kappos, KSR v. Teleflex and how the patent system is tilting against independent inventors, start-ups and universities.
I thoroughly enjoyed my conversation with Judge Michel, and I hope that comes through in the transcript. Judge Michel is passionate about patent law and wants to play whatever role he can to get real change that can help the system. He was exceptionally open and forthright, no doubt as a result of no longer having to mince words on issues of the day as a neutral jurist. I left the University Club with a new respect for Judge Michel, what he has accomplished in his career and for the institution of the Federal Circuit. While I may not always agree without outcomes or rulings, the one thing that should be driven home in this interview is that Judge Michel is exceptionally pro patent and pro Patent Office.
Due to the length of the interview it will be published here in 4 parts of roughly equal length. Judge Michel has also graciously agreed to chat with me again in the coming months so I can pursue some of the questions that had to go unasked.
Without further ado, I proudly present Part 1 of my interview with the Honorable Paul Michel.
QUINN: Well, first I want to thank you, Your Honor, for taking the time to sit down and chat with me. I appreciate your willingness to do that. So let’s just jump right in. And I guess probably the best place to start might be with your retirement. I know it’s only been a month so far, but how are you enjoying retirement? What’s keeping you busy?
MICHEL: Well, I enjoyed being a judge very much. And I actually assumed through almost the entire 22 years that I would stay a judge forever, maybe in senior status working on a part-time basis, eventually. But I eventually came to the view that I could do more good and meet some new challenges if I left the court and was therefore free to speak about more controversial or political matters. So I decided to do that.
As you know, I stepped down retiring completely from the judiciary on May 31st. So as you say, I’ve been a private citizen actually for the first time in 44 years, first time since I graduated from law school, for a little over a month. I’ve been very busy. I’ve been doing what I expected to be doing, which is trying to help inform people about problems in the intellectual property world that affect everybody in the country. I’ve given three or four speeches: two in Philadelphia, one in Munich, one in Washington. I’m going to be giving some more speeches later in the summer, and quite a few in the Fall. I’ve teamed up with a high-tech CEO to write an op-ed article, which may appear in the coming weeks in the New York Times about the need to revive the patent system by better financing of the patent office. So I’ve been very busy. I haven’t had a minute to look back on the court or be nostalgic or even emotionally feel, do I miss it, what about all my friends and colleagues on the court? I’ve just been so busy; I’m looking forward, moving forward at about 100 miles an hour. So “retirement” isn’t the right word. I just changed jobs.
QUINN: Do you suppose maybe once the court gets into a more active calendar of hearing oral arguments in the fall do you sense that there may be a, Oh, I wish I was still in the game feeling?
MICHEL: Well, of course I don’t know, but I doubt it. That’s because as I say, I have quite a number of speaking opportunities lined up for the Fall. I’m going to try to write some more articles. I’ve drafted several different articles, some about the courts, some about the patent system, some about the patent office. I’m still involved as a member of the judiciary’s long-range planning committee in trying to help chart the future of the federal court system, the entire system. So I expect to be very busy through the fall and winter and spring. Maybe a year from now things will slow down. But I doubt it. I’m beginning to pick up mediation and arbitration jobs, and case evaluation jobs so that between what I’ll call the reform system related pursuits, and the pursuits involving individual disputes, I think I’m going to be very busy for years to come. So I’m not sure there will ever be a time where I’ll look back and feel, oh, gosh, it would be interesting to be on that case. I’ll be working on the same problems from a different viewpoint. I doubt that I’ll be saying, Oh, gosh, I wish I were on that three judge panel that’s hearing the argument in such-and-such a case.
QUINN: And it seems like you have a lot more freedom to the sort to things and say the sort of things that you want to say.
MICHEL: No question. People don’t realize how severely restricted federal judges are. I suppose it’s necessary and proper, but it’s really quite severe. We’re not supposed to talk about anything that’s political or partisan or controversial or involves broad matters of public policy. And the only sort of safe zone of comment for a federal judge is on the impact on court administration of proposed changes in the law that are pending in Congress, or elsewhere, for that matter. So people don’t realize, and I didn’t actually realize when I first started as a judge how many things you’re not allowed to talk about, how many things you’re not allowed to do. You know, judges are not allowed to make campaign contributions.
QUINN: Really? I did not know that.
MICHEL: At all to anybody. They’re not even allowed to raise money for a charity. So for example, suppose you’re a Boy Scout, and the Boy Scout authorities come to you and say, “Would you help raise some money to create a camp for the scouts to go to in the summer?” Federal judges are actually precluded from doing that even for a religious institution. If you belong to a church and they ask you to help with fundraising among members of the church, you’re not allowed to do it. So there are many, many restrictions.
QUINN: Now, are those the judicial canons of ethics? How do you come to know them?
MICHEL: There is a Code of Conduct binding federal judges that is very long and very complicated. It’s almost like the tax code. It has many provisions in it that to me are not intuitive at all. Which is why I compare it with the tax code, lots of things in there that just seem like rules that somebody set out, but there isn’t necessarily a clear logic to it. So anyway, it’s a bigger difference to be free of those restraints than I could have imagined. And it’s a very good feeling, and it’s a very good opportunity for me to try to be helpful on some of the same issues I worked on as a judge, but now being able to speak freely.
QUINN: I know we didn’t intend to talk about it, but this is I think very interesting, and I have one more follow-up question, if I may. When an attorney has a potential quandary with respect to the ethical rules, there’s a number of places you can turn. Your state bar, you can ask for some kind of, maybe not binding but advisory help. You can go the ABA and get the same or similar thing. Is there that sort of thing available to judges?
MICHEL: Oh, yes. There is a standing committee of the Judicial Conference called the Committee on Codes of Conduct. And it not only updates and expands the code from year to year, but it also provides both formal and informal advice, written advice and less formal oral advice to judges who have questions. And many, many judges make many, many inquiries in each of those two levels and get response from the Committee. In addition to that, the Committee and the Administrative Office of United States Courts put out publications of various kinds for judges to read to help steep judges in all the little nuances of these rules and how they play out in numerous different kinds of situations. So there’s lots of guidance and there’s lots of advice. I’m not really trying to suggest that the rules are overly restrictive because I think they serve a good purpose. But my point is that they’re highly restrictive even if they aren’t overly restrictive. And so when someone retires as I have, you go from being highly restricted to being totally unrestricted, and it’s really quite a night and day change.
QUINN: Almost like from high school to college, in some ways.
MICHEL: No, it’s a bigger change than that.
QUINN: All right, what I thought maybe we could do, because you’ve already touched upon some of the things in your past, would be to break the interview into two, and look at your career and then maybe look at the patent system where you’d like to see it go, and your time on the federal circuit and so forth.
Now when you talked about this is the first time you’ve been a private citizen, I know you mean that quite literally, or I think you mean it quite literally because of where you started right out of law school. I was at this recent IPO event where you were honored with a lifetime achievement award, and they played this montage that was one of the most flattering video montages I’ve ever seen. And to listen to the things that your colleagues in the federal circuit said about you and law clerks and attorney, it was inspiring, quite frankly. So before we start to walk through your career, where I got a lot of good information about from that video, what was your feeling sitting there watching this tribute to you? Because I get the sense you’re a pretty humble, level-headed person.
MICHEL: Well, I thought I’d be very embarrassed. But I was not. And the feeling, the reaction that I had was hasn’t it been such challenging, satisfying work with such terrific colleagues. So it just made me feel happy to be reminded of what a great adventure it’s been for 22 years, two months, and two weeks on the court and 44 years in Government. It’s just been a tremendous journey. So I actually enjoyed the montage quite a lot, and didn’t feel embarrassed. Of course it was extremely favorable and flattering, and a little over stated. But what it reminded is of how many good people there are in the intellectual property community working from all the different angles on these same challenges that face the country. So I found it actually kind of inspiring, and not just as a reminder of how much fun it’s been to work with those people, but as a reminder of how many interesting, smart people there are all over this whole community, and all these different organizations and law firms, and corporations, and trade associations, and all these other players in the huge IP community.
QUINN: I was stuck by it. Because a lot of times those types of things, they just talk about platitudes, and it’s you are great, this person was great, he was a great guy. But what struck me was that this was enormously factual specific. So it wasn’t just people saying that you’re a good guy, or you’ve done a lot for the industry or a lot for the law in general. It was line item fact, fact, fact, fact. Maybe we could get into those. I think it is very fascinating.
Maybe the best way to just start that would be to ask — can you tell us a little bit about your career once you left law school, where exactly did you go first?
MICHEL: Well, I got very good advice, fortunately for me, from the time I left law school in 1966, that’s when I graduated, until I was put on the court in 1988. So for example, the advice I got in law school was that the most important thing is to learn your craft as a lawyer. Not as a law student, but as a practicing lawyer. And I was interested in litigation, and so the advice I got was go somewhere where you can litigate every day. That’s how you learn to be a good litigator. Can’t learn it from books or movies or training manual. All those can help, but the main teacher is to do it over and over and over. So I went to work in the district attorney’s office in Philadelphia right out of law school for exactly that reason. And like many people who start that kind of work, I sort of imagined that maybe after three or four years I’d end up going off into a law firm and probably shifting from criminal litigation to civil litigation. But I had such a great experience. I was learning so much so fast, and getting a great variety of different experiences, I ended up staying the entire time that Senator Specter was the district attorney in Philadelphia, which was eight years. So just a little bit less than eight years, I was in that office and it was a great learning experience. It couldn’t have been better. I had good advice, I followed it, and it worked out absolutely great.
QUINN: How did you get from being a district attorney in Philadelphia to investigating the President of the United States dealing with Watergate?
MICHEL: In the seven years I was in the DA’s office, I started out as specialist in Constitutional Law and criminal procedure matters. They had exploded in the mid-sixties with decisions coming out of the U.S. Supreme Court, and many lawyers and judges were not very well steeped in them and I luckily was immersed in them as a law student. So for the first several years I specialized in handling pre-trial suppression motions involving confessions and line ups and searches and seizures and so forth. And also in post-trial matters that again involved these new constitutional rights. But in the last several years I was in the DA’s office, I shifted more and more into complex investigations. And as time went on they tended to focus more than anything else on misconduct in office, high office by public officials. I became a specialized investigator for public corruption. So I did that for 19 months through a special investigating grand jury that was called by the courts in Philadelphia in which I ran as the lead prosecutor. I had many helpers, other assistant district attorneys, and detectives, and accountants, and so on. But in any event, I developed a little expertise and a bit of a reputation.
So in the middle of the Watergate scandals, a new investigation opened up in the spring of 1974, and I was a natural to do it because of this work I was doing in Philadelphia where I was investigating the mayor, and the police chief, and the governor, and half the city council, and so forth. So I came to Washington in March of ’74 to run a newly opened investigation in the Watergate Special Prosecutor’s office that focused on a cash slush fund, I’ll call it, maintained on behalf of President Nixon by his personal friend, a banker named Charles Rebozo, now deceased and also by his secretary, Rose Mary Woods. For over a year I worked full time on that investigation. It was a direct extension of the type of investigations that I had worked on in Philadelphia and like litigating all these constitutional issues in the course of ordinary criminal prosecutions in the city of Philadelphia, the investigative work was a great teacher about litigation, about fact gathering, about analyzing facts, about assessing different motives that different people have from saying what they said, or the way they said it, sifting and sorting between conflicting claims, and judging credibility, and learning how to use very complicated documents to indirectly zero in on some activities that people were trying to hide and you couldn’t find direct evidence of it, but often you could find indirect evidence. And a lot of it ended up being financial in nature. The Watergate investigation that I ran, was called the Hughes-Rebozo Investigation; Hughes because he was one of the donors of $100,000 in cash, and Rebozo because he was one of the recipients. As I said, Rose Mary Woods, the secretary to the President was the other one. So the financial work in Philadelphia translated right into the financial work in Watergate. And all of that ended up being very helpful to me later as a judge on damages issues and other financial aspects of litigation, not only patent litigation, but other litigation as well.
So when I look back, I was very lucky throughout all those decades to have very good mentors. But I was also very lucky that each experience just by dumb luck turned out to be very good preparation for what the next job would require. It wasn’t really planned out. I just went from one job to another as circumstances dictated, but looking back, each one was really ideal training for the later ones. I was very lucky in that respect as well.
QUINN: It seems that the old saying the harder you work, the luckier you get. It seems this is somewhat the extent.
MICHEL: Well, hard work is very important. And I think in the investigations one of the things that I learned was that there aren’t very many eureka moments, or TV like situations where a witness finally admits that, oh, yes, I’m the murderer who shot the victim.
QUINN: No Perry Mason moments?
MICHEL: Very, very, very rare. And most of the work involves minute painstaking review of hundreds and hundreds and hundreds of pages of documents, and then following up on that with questioning people, and then getting more documents, and sifting through all those documents then questioning some more people, and then going back to the first person and confronting them with what the second person said, and so forth; so there is a tremendous amount of minute work, like building a house, one brick at a time with painstaking assembly of the bricks.
QUINN: Now, as you’re focused on these moments, finding the bricks and building a house, so to speak, did you have a sense that this was going to be an historic moment? And what was going through your mind. Because at that point, even though you had quite a bit of experience, you were still relatively young, and you’re investigating the President of the United States. Can you give us a sense of what was going through your mind?
MICHEL: Well, we were so busy working on the cases that we didn’t have too much time to ruminate about the way it might be viewed later by historians, or even earlier by journalists, or the general public. But we certainly all were very conscious that this was really important. This really had to do with this: does the rule of law really control or can people in supremely powerful positions dodge around the law and get away with it? That was the basic challenge. And we all knew that. I was probably the youngest of about 33 special prosecutors who were a part of that operation. It started in ’73, and it wound down gradually in ’75 and ’76. And I was there in ’74 and ’75. So I was one of the younger ones. I think I was 30 when I joined the office, maybe 31. I have the identification badge that I wore then, and I had completely black hair, very thick, curly, black hair. Of course, now I have very little hair, and it’s totally white. But then I was young. I was one of the younger, if not the youngest. It was a terrific group of people. It was led by Leon Jaworski. He had succeeded Professor Cox.
QUINN: Is this how you transitioned into Koreagate, and what exactly was Koreagate?
MICHEL: Well, I went from Watergate to working for what became known as the Church Committee, the original Senate Intelligence Committee, in the summer of ’75. And so for a little over a year I worked for the Senate Intelligent Committee again doing investigative kind of things involving misdeeds of the intelligence agencies and some of the law enforcement agencies; CIA, and NSA, FBI, IRS, and others. And that involved some of the same types of techniques that I had learned about in Philadelphia, then in Watergate. And then I went from there in the spring of ’76 to the Justice Department where they had just formed what they called the Public Integrity Section, which was a new unit to investigate and prosecute cases involving allegations against high-level political leaders. So it was similar to the Watergate Special Prosecutors Office, but institutionalized, bureaucratized placed in the Justice Department. So I was hired by Richard Thornburgh to help organize and found that unit. I was the deputy of the unit. The chief was a lawyer named Tom Henderson. And it started out as only a handful of people. And now it has 40 or 50 people in it in its fifth generation of leadership. But I was one of the founders of that.
And shortly after I got there several new pieces of information became available about the activities of Tongsun Park and some other Korean businessmen and some Korean intelligence agents, actual employees of the Korean Central Intelligence Agency, the KCIA. So because of my background I was the logical person to run this new investigation, which burgeoned into quite a large enterprise. I remember in the fall of ’76 picking up the Washington Post on the sidewalk in front of the little house I was renting in the Virginia suburbs, and the headline said, 110 Members of Congress on Korean Payroll, or words to that affect. So it really did turn into quite a big deal because there were various allegations and bits of information that suggested that money had been received by quite a number of members of Congress. So that was the focus of the investigation, receipt of funds by members of Congress and it turned out it was nowhere near 110 people who got any money, legal or not. But there were some who had and in some cases it was clearly not legal. I ran that investigation for the new Public Integrity section from 1976 until 1978. I’m very proud of what the outcome was, because it did exactly what prosecutors are supposed to do in this sense; It indicted some people who clearly were guilty, several pleaded guilty, one died before he could be tired, and so forth. But a very large number of congressmen whose names had been mentioned here or there and had ended up showing up in the Washington Post, hadn’t done anything wrong, hadn’t received any money and to a certain degree they got exonerated by the investigation. So I thought it was a very good illustration of the two-sided nature of criminal investigations when they’re done right: to prosecute the guilty and clear the innocent so that their reputations aren’t permanently ruined by what appeared to be false allegations. So that was the nature of the so-called Koreagate. That was what the Washington Post called it because of having invented the word for the Watergate investigation. And of course now every new investigation is this-gate, that-gate. But Koreagate was the second after Watergate.
For more of my interview with the Honorable Paul Michel, see: