In July 2010 I had the privilege of interviewing Chief Judge Paul Michel of the Federal Circuit, who had just recently retired from the Court effective May 31, 2010. Chief Judge Michel spoke with me on the record for over 1 hour and 40 minutes, and even then I only was able to get to a fraction of the topics that the Chief Judge agreed to discuss on the record. Chief Judge Michel agreed to go back on the record with me to address those additional topics, such as the confirmation process to become a judge, the state of the federal judiciary, funding for the Patent Office, Federal Circuit decisions over his tenure on the Court and more. We had our second interview on September 24, 2010, again at the University Club in Washington, DC.
The timing of the publication of this second interview with Chief Judge Michel is quite fortuitous. This evening the Federal Circuit Bar Association is holding a retirement party for him, together with dinner and dancing. Unfortunately, I find myself in San Francisco teaching the PLI patent bar review course and I am unable to attend. Renee Quinn is attending the event and will have a full report of the festivities, so check back tomorrow for more.
Chief Judge Michel has been enormously influential over his career, having been a federal prosecutor working on the Watergate and Korea-gate investigations, as a senior staffer to Senator Spector and for more than two decades sitting on the Federal Circuit. In this installment we talk about what he has been doing since he retired, his thoughts on fee diversion and an inside look at the confirmation process. We also discussed the confirmation process of Robert Bork and a federal judiciary that seems almost ignored by Congress, thanks to the fact that getting confirmation hearings completed has become nearly impossible.
Without further ado, Part 1 of my second interview with the Honorable Paul Michel, the former Chief Judge of the United States Court of Appeals for the Federal Circuit.
QUINN: Thank you, Your Honor, for taking the time to chat with me again today. I really appreciate that. Before we pick up with some of the questions that we didn’t have time for in our first interview, I was wondering if you might be able to tell us a little bit about what’s been keeping you busy over the last several months.
MICHEL: Well, as you know, Gene, I stepped down from the bench on the final day of May. And to my surprise, I’ve been as busy since as I was before. I’ve been traveling and speaking a lot, mostly on patent reform and funding the patent office adequately. There seems to be a huge interest in that in the broader patent community. I’ve been trying to concentrate mainly on the domestic front, but I was in Munich two weeks ago talking about the doctrine of equivalents on a panel with a German Supreme Court judge and a recently retired Japanese IP High Court judge. And that was a very interesting session. I’m headed for Chicago on Sunday and I’m delivering a keynote address to the Licensing Executive Society midday on Monday. And I’ll be talking to some general counsel in California next week. So I’m staying very busy with speaking. And I’m also conducting a series of meetings. I’ve met with union leaders, with some business leaders who aren’t patent lawyers. And more and more I’m trying to do outreach to people who are interested and affected by these issues, but aren’t themselves patent lawyers or a part of the patent community. So I’m particularly interested in talking to general counsel as opposed to chief patent counsel and to higher level executives in all the different companies and technologies. And that’s beginning to happen more and more. And then at the same time I’ve been doing mediations, mostly in patent cases. And that’s also turned out to be quite busy and very challenging and satisfying. And so “retirement” is kind of a misnomer. I’m as busy as I can stand to be in pursuing meetings, speeches, along with some articles, and also the mediation and case evaluation activities. And I’m finally at the stage of deciding whether to do all of my work in connection with the Intellectual Property Owners’ Education Fund compared to setting up some sort of separate small entity to support the advocacy and education that I feel drawn to do; to try to strengthen the patent system and patent office, other institutions like the customs service, and also the tribunals, the International Trade Commission and the district courts need a lot better support so that they can adjudicate the important patent cases much more rapidly than at present because we’re losing to foreign competition, partly because we’re way too slow. So that’s my agenda, and I’m about to decide how best to structure that.
QUINN: So you’ve been pretty busy. How have your meetings been going with the non patent folks? Are they receptive to the message?
MICHEL: I would say they’re surprisingly receptive given how little most people know about the Patent Office or how patents work. There is a sort of educational gap that you have to overcome with people who have not functioned within the patent system. But once the people get the basics straight in their minds, they become really quite interested. So I feel encouraged that non patent lawyers can understand, will care, and may press the decision makers, primarily the Congress, to do what needs to be done.
QUINN: Okay. Now, you also mentioned that you’re continuing to talk about patent reform and so forth. Do you have any predictions on the patent reform bill that’s currently pending or any thoughts on patent reform in general?
MICHEL: Well, I think the chances of the present Congress passing patent reform along the lines of either the House or the Senate bill look quite limited. I’m told that there’s no chance of Senate consideration before the election. And the best estimates I get, say that even in any lame duck session after the election, it’s not very likely that the Congress will get to the patent reform bill. And, of course, the House seems to have a very different version of patent reform that it favors. And I’m told that some of the people most strongly in favor of patent reform are actually against the Senate bill and would rather have no bill if they can’t have the House bill. So there’s a big divide between the House and the Senate. But to me the most important thing is not which bill has a better chance, or which bill is better, although those questions are important, too. I think the most important thing is that passing either bill would be highly counterproductive for the economy, for job creation, for business prosperity, for technological leadership, and on and on and on, unless the Congress first fixes the patent office. Because both bills thrust enormous new duties on a patent office that is already dysfunctional, that is so slow and so undependable as to be a huge impediment to business advance and technological progress. So I’m against both patent bills unless we first fix the patent system, which means more money, more flexibility, more authority for the patent office. They need a sharp increase in the number of examiners. They need to completely upgrade their computer systems, which are in terrible shape, as you know. They need more space for examiners. They need authority to open satellite offices in other cities. They need immediate cash to rehire retired examiners and pay current examiners overtime to jumpstart the effort to speed up the examination process, and also to improve the quality of it. So I think the focus on so-called patent reform is completely backwards, completely counterproductive. And what the country needs to do is first fix the patent office. And then once that’s done, craft a more careful bill than I think either of the bills are, and then move toward passage in that second stage.
QUINN: Do you think that maybe we’re approaching a time when we might want to consider either privatizing the patent office or turning it into a quasi-governmental body? And the reason that I ask that is just over the last couple of days the Republicans in the House have put together the Pledge for America. Now, not to get into a political discussion, necessarily, I tend to align myself more with that philosophy. But there was something in there, and I haven’t read it, I’ve heard it, that troubled me is that they wanted to put a freeze for hiring federal government employees. Which at a time when everybody’s tightening their belt sounds like a responsible thing, except for where we know the patent office is already undermanned, underfunded, and highly neglected. That was worrisome. So I wonder if we’re in a climate where we just can’t operate a patent office in the way it needs to be operated if it really is under government control.
MICHEL: Well, I don’t myself think that government control is the problem. I think Congressional diversion of fee money is the problem. And that definitely needs to be ended. The appropriators in Congress were poised to take about $230 million out of the fee collections for the current fiscal year. They were finally embarrassed into returning $129 million of the $230, but they’re still going to divert the rest, which I think is absolutely scandalous. So it seems to me that step one in fixing the patent office is permanently ending fee diversion. Step two is raise the level of fees in a careful way. Maybe in several steps. And if it’s necessary to make the patent office a quasi-governmental corporation in order to prevent Congress from siphoning off fee money, then I think that should be considered. But in terms of privatizing it, I don’t have much confidence in that being a solution. It’s really a resource issue. You need money, you need space, you need positions, you need new computers, you need new authority, you need new flexibility. All of those things require affirmative agreement and action by the Congress. So the problem, the bottleneck is the Congress, not the form in which the patent office exists, public, private, semi-public.
QUINN: Now shifting gears a little bit from that to maybe get back into some of the interesting stuff that I had to cut from our first interview. One of the things that I wanted to talk to you about, and it was admittedly maybe more topical at the moment of our last interview, was about the confirmation process in general. And one of the things that’s always occurred to me is is that the Robert Bork confirmation hearing seemed to be sort of a turning point in American history. And I was wondering if might be able to get you to give your thoughts on that having been somebody who’s gone through a judicial confirmation.
MICHEL: Well, I think that the Senate confirmation process for judges has become absolutely disgraceful and indefensible. It’s gotten steadily worse for the last 30 years. There was a judge on the court when I arrived at the Federal Circuit in 1988 who had been confirmed in less than three weeks. Now it can take three years. And it typically takes the better part of a year. Again, just using the Federal Circuit as an example, the court has 12 judgeships. Three of them are now vacant. So the court is operating one quarter, 25%, under strength, which is terrible for the patent community and the contractor community and all the other people who depend on the court to be prompt and careful. Now, Judge O’Malley was nominated, I believe back in February. So here we are practically October, and she’s not even out of the judiciary committee, much less confirmed by the full Senate. So I think the whole thing has become an absolute disgrace. I don’t know the answer, other than a need to return to a style of governing that has ebbed away steadily for several decades. But in the absence of cooperation between the parties and efficiency as agreed on value, I think the Senate should by rule or resolution require an up or down vote 90 days after people are nominated, period.
QUINN: Well, that would certainly get things moving along. Because it’s not just at the Federal Circuit that there’s these kinds of vacancies, correct?
MICHEL: There are 100 vacancies today, which is more than 10% of the judgeships around the country. So the judiciary, which is already embarrassingly slow in most civil cases, is operating under strength by more than 10% just because of the inefficiency of the Senate and the White House, and it’s been in every recent administration and every recent Senate. So it doesn’t seem to be a question of which party, or is it a more conservative administration or a less conservative. It just seems to be a breakdown in the process, a breakdown in discipline, a loss on the part of senators of valuing promptly filling judicial vacancies. And on top of the 100 vacancies, the judiciary is nearly a hundred under strength compared to its needs. So it’s really 200. It’s the hundred additional judges the judiciary’s been asking for for many, many, many years, but the Congress always brushes it aside. Plus the hundred vacancies. So we’re really 200 judges short. So it’s no sunrise that civil cases take five, six, seven, eight years to come to a final conclusion. And in the case of a patent, if you have a valid patent that’s enforceable and is being infringed, and you can’t get a final outcome for six to eight years, that’s totally unacceptable. We’re going to lose to foreign competition, we’re going to fail to create jobs, we’re going to fail to grow our existing companies. And tax revenues will go down, personal income will go down, everything will fall apart more and more if we can’t greatly speed up civil trials just like speeding up patent office examinations. Exactly the same problem. And at least 90% of the solution has got to be resources, not just talk.
QUINN: Yes. It strikes me that the best way–I mean, if I had been elected president, not that’s ever going to happen, but if it did one of the first things I would do would be to nominate people across the board. Because these are folks with life tenure that can really affect average people on a much more direct basis than any Congressman or Senator, or the President ever could. So it seems almost like there’s a naiveté in Washington about the importance of the federal judiciary.
MICHEL: I think there’s a huge problem in our whole political culture. That if something isn’t on the front page it’s not important. If it’s not on the evening news on TV, it doesn’t have high value. And that’s completely backwards thinking. Prompt selection of good judges is very important to the society, and the economy. But it’s not highly valued by the political leaders and the political activists. So this White House or the last White House, terribly slow on selecting judges. The Senate, terribly slow on confirming judges. Lots of judges held up, often for extraneously reasons. Some Senator’s mad because some project in his home state wasn’t approved by some department and he takes hostage of judicial nomination and says he won’t allow there to be a vote on that nominee until he gets his project in wherever it is. And I think that kind of tactic is just terrible and disgraceful. So I don’t see how this country is going to get on a productive pathway toward more prosperity unless we rearrange our priorities and make a high priority out of adequate funding for key institutions, like the patent office that’s a “job creator.” And like the federal courts, that’s a rights vindicator that adds value to patents. If you could get a final result in a patent case in a year instead of six years the value of a patent would go up. Well, that’s what we need, is the value of patents to go up and more incentives to invest and more R&D and more investment to scale up to production, and build factories, and hire workers, and beat foreign competition, and increase exports. Those are what we need to do. But the political actors have the priorities completely backwards. They’re playing around with symbolic things that are front page items, and they’re ignoring the innovation infrastructure, which really is the most important asset that this nation has.
QUINN: I would totally agree with everything that you just said. It seems that we live in a sound byte world. And if it can’t play on the cable TV news in 15 seconds, then they’re not interested in thinking about it, which is a sad commentary. And that can’t be what the Founding Fathers thought in consultation with the Senate meant.
All right, just moving one step away from that, but sort of in the same general area. When you were appointed, can you give us a sense of what the process was like? I don’t think a lot of people understand how judges get appointed and so forth. We know the process, you get selected, but the behind-the-scenes process is a mystery. Is it something that you lobby for or let people know you might be interested in, or is just one things leads to another?
MICHEL: Well, at the time I was working for Senator Specter in his senate office. And he asked me if I’d be interested in a judgeship because he had worked with me for seven years when he was the district attorney in Philadelphia back in the 60s. And we had started working together again in the early 80s when he first came to the Senate. And I told him, yes, I’d be very interested in being considered for a judgeship. And originally I was considered for a judgeship on the Third Circuit and then an opening came up on the Federal Circuit and he asked me if I would be as interested in the Federal Circuit as the Third Circuit, and I said, yes, absolutely. And I had not only worked so closely with him that I was well-known to him, but I had been at the Senate on my second tour, I’d been there in the 70s for almost two years, and then I was back in the Senate as a staffer, and a lot of the senators knew me and know my work. Senators on both side of the aisle. So even though it was last year of the Reagan Administration, and I didn’t even really have any very strong ties with the Reagan Administration itself, but I had a lot of support by senators. Particularly senators on the judiciary committee, but also senators who were not. And senators on both side of the aisle, and they made it happen, basically. And obviously, an important role was played by the attorney general and his advisors and by various people in the White House. But I think the main push really came from senators, and it was very much assisted by the fact that I was acceptable to the Democratic senators on the judiciary committee as well as the Republican senators. So that’s basically how it came about. A lot of it is luck. I mean I happened to be working for a senator who was a very influential, active member of the judiciary committee and who had a lot of credibility on legal and court-related matters because he had, unlike most senators, even the ones who are lawyers, he had done a lot of litigation. He really understood courts and judges and case law development and so on. And as a result he was highly trusted and respected by other senators on the Judiciary Committee. So when he told them that, well, Michel would make an excellent judge, they accepted that as true. And some of them had enough knowledge of me to be able to judge on their own. But those who didn’t I think were very strongly swayed by what Senator Specter said. And I actually think that’s a pretty good way to select judges. I don’t think people should be running for judgeships. I don’t think people should be maneuvering, you know, get campaign contributions for this elected politician, or that politician. I think that the organized bar often can suggest people, and that that’s constructive, and I think there’s a role for these commissions that many senators have formed. But however you do it, I think that it ought to be a selection of people who’ve shown in their career that they have the right kind of objective, neutral, impartial, fair approach to decision making. And I’d be very wary of people who are campaigning for the job. They may not have the best of motives, and they may not be the best people. So I’m for merit selection based on proven legal ability and temperament, which I think actually is even more important than law school grades or fancy clerkships or how much money somebody made in private practice. The real question is: do they have judgment, do they have discretion, are they able to sort out conflicting claims and inconsistent testimony? And are they going to work hard enough? I mean, we really learn it all from the lawyers. We don’t have any independent knowledge. So you have to study like hell. It’s kind of like being a permanent Ph.D. student where every single day you’re studying complicated, difficult, voluminous materials written by people who know much more about the subject matter than you do. So there’s a certain skill that that takes and people should be sought out for judgeships who have that kind of skill and the temperament. You know, I think temperament is the most important thing of all. Temperament and judgment are way more important than pure legal smarts.
QUINN: Now, when you got nominated, what was the first thing that you did? Do you remember? I imagine this was a pretty exciting time. Well, actually, maybe to take a step back. I’m assuming that this would be a pretty exciting moment in your career. Did you view this as a dream job? Did you know you were going to spend the rest of your career at the Federal Circuit?
MICHEL: Oh, yes. This was clearly the job of a lifetime. This was a dream job, especially for me with my particular legal interests. So I was very excited in the fall of 1987 when the Justice Department and the White House through several stages indicated that they thought well of me, and were seriously considering me for an appointment to the Federal Circuit. As I say, I was also considered originally for appointment to the Third Circuit. And so I was very excited. In December of 1987 President Reagan personally called me on the telephone to say that he had decided to nominate me and wanted to be sure that I was willing to serve and ready to serve. And of course I told him yes. Then in late February I had my confirmation hearing in front of the Senate. I was called along with two other judges. The whole hearing lasted about an hour, by recollection, coving the points on all three judges. So it was very prompt. The decision by the President was made in December and he called me. The nomination I think actually was sent to the Senate later in December or perhaps in early January. And by the end of February the hearing had been scheduled, it had been held. And in the meantime the FBI had very thoroughly investigated me. As I recall they interviewed 300 people, even though I already had an extensive set of security clearances and from Justice Department employment and Watergate Special Prosecutor employment they already knew tons about me. And even so, they interviewed 300 people, which I think is very appropriate. Federal Judges have so much power and it’s very little review of their power. And it’s very, very important to pick people of the highest possible integrity and intelligence, and self-discipline and so forth. So I think the thorough investigation was very appropriate. But it was fast. It was done rapidly by the FBI. Now these investigations often take six months, or eight months, or nine months, which I think is very, very unfortunate. And the hearing was promptly scheduled, promptly held, and didn’t drag on. It wasn’t controversial+. None of the three judges were considered problematic by senators on either side. And they moved the process right through. The hearing was on the 28th of February. The Senate voted within a week of the committee sending me forward to the Senate floor. So I was formally appointed by the President on the 4th of March and sworn in on the 8th of March coming off a hearing held on the 28th of February. So look how quick that was. And now every one of those steps could take many, many, many months.
So I was lucky. I went through an era where there was still cooperation between the parties, and where speed and efficiency was given a high value by the FBI, the White House, the Justice Department, particularly by the Senate Judiciary Committee, and that doesn’t seem to be true any longer.
QUINN: Now, your confirmation, that was after the Bork incident?
QUINN: When do you suppose that this really fell apart? Do you know? When did things start to really grind?
MICHEL: Well, I think it got steadily worse. There was a lot of acrimony in the late 70s. And that kind of set the stage for the Bork hearing. I agree with you that the Bork hearing was a new low, and was a major turning point. But it was not by any means the first horror show in terms of delay and controversy, and so forth. My recollection is that Jack Miller was appointed in 1976. And that was the three week appointment. So I would say as of 1976 things were fine. And by 1986 even before Bork, Bork was ’87, things weren’t so good any more. And after Bork it was even worse. And, frankly, I think it’s gotten steadily worse since. Both parties take hostages. Both parties demonize the candidate of the other party’s president. In many cases, not every case, but many cases, and it’s all excessive and unnecessary, and I think that the motive is they’re trolling for dollars from highly motivated single issue groups. And they’re not really giving the highest priority to the overall needs of the country and the legal system. And that’s what they ought to be doing in my opinion.