Chief Judge Paul Michel at his retirement party, October 19, 2010
This is the final installment in my follow-up interview with Chief Judge Paul Michel, who retired from the United States Court of Appeals for the Federal Circuit effective June 1, 2010. In some ways this might be the most interesting of all of the interview segments for those practicing in the patent arena, or those who have any reason to appear in front of the Federal Circuit. In this final installment Chief Judge Michel speaks with me about what, in his opinion, makes for effective appellate advocacy, both in terms of written briefs and in terms of oral presentation.
It has been a privilege to provide my two different interviews with Chief Judge Michel, and to be invited to his recent retirement party. Chief Judge Michel has always been gracious and giving of his time, and is truly committed to working for a better patent system now that he is a private citizen. Despite his extraordinary accomplishments he is always exceptionally humble and truly a nice guy, proving the old adage that nice guys finish last is not always true.
Over the summer I had the opportunity to interview Chief Judge Michel on the record, but our conversation took on a life of its own and many of the topics I had hoped to cover wound up having to be cut due to time considerations. Chief Judge Michel graciously agreed to a second interview, which took place on September 24, 2010. In part 1 of this interview sequel, we discussed fee diversion at the USPTO, he gave an insiders view of the Senate confirmation process, discussed the confirmation process of Robert Bork and a federal judiciary that seems almost ignored by Congress. In part 2, which appears below, Chief Judge Michel and I talk about the Federal Circuit, focusing on the good decisions during his tenure on the Court, as well as a few he thought the Court got wrong, including a nearly unanimous en banc decision. We discuss inequitable conduct, his thoughts regarding the Supreme Court should be meddling with patent law so much, and what he tried to do as Chief Judge to bring the Court together and build a collegial working environment.
Part 3 of this interview will appear on Wednesday, October 27, 2010. In that final installment Chief Judge Michel explains what Federal Circuit Judges are looking for in the briefs, in oral argument and the characteristics of an attorney who is likely to find success at the Federal Circuit. Stay tuned!
The Honorable Paul Michel, Chief Judge of the CAFC (ret.)
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.
In this final installment of my interview with Chief Judge Paul Michel we discuss Bilski v. Kappos and what he thought of the Supreme Court’s decision. Judge Michel talks about how only one of the Justices who decided Bilski ever decided a patentable subject matter decision, leaving the impression that the Supreme Court should probably just leave well enough alone. He tells us that he “think[s] the Federal Circuit can help minimize harm” that may otherwise be caused by the Supreme Court’s decision in Bilski v. Kappos, but is unsure whether the Federal Circuit can all “the harm that may lie inherent in the approach of the Supreme Court in that opinion…” Chief Judge Michel also discusses how he feels that the patent system is now favoring extremely large companies over independent inventors, start-ups and small businesses. Plus, the fun stuff!
On July 9, 2010, I sat down with the Honorable Paul Michel, the recently retired Chief Judge of the United States Court of Appeals for the Federal Circuit. In this interview, which lasted for 1 hour and 40 minutes, we talked about his experiences as a prosecutor in Philadelphia and then in Washington, DC where he was a special prosecutor in the Watergate investigations and the lead prosecutor in the Koreagate investigations (see Part I). We also discussed the decline in the checks and balances the federal system; the Founding Fathers and how they viewed patents and how the Patent Office used to be held in such esteem (see Part II).
In this third installment things get interesting, perhaps even a bit explosive. The former Chief of the Federal Circuit pulls no punches and talks openly and honestly about Congress, laying the blame for the decline of the Patent Office squarely on the feet of Congress who has since 1992 siphoned off at least $750 million thanks to fee diversion. This has left the Patent Office short on resources to do what needs to be done. The Judge also makes the case for regional Patent Offices and getting involved in the patent reform debate so that a handful of companies can’t dominate the discussions to their sole benefit. He talks about perhaps setting up a think tank to promote a pro-patent and innovation agenda, and how it is a “travesty” that patent rights cannot be enforced in a relevant time frame through litigation because of backlogs in the federal court system. I think it is fair to say that Congress was in the cross-hairs during this segment of our interview and some of what Chief Judge Michel tells me was surprisingly forceful, direct and extremely critical. Having said that, I think practically everyone in the industry will agree with him. I know I sure do!
On July 9, 2010, I interviewed the recently retired Chief Judge of the United States Court of Appeals for the Federal Circuit, the Honorable Paul Michel. Judge Michel and I talked on the record for 1 hour and 40 minutes at the University Club in Washington, DC, where he is a member. This is Part 2 of a 4 part series. In Part 1, On the Record Interview with Chief Judge Paul Michel, Part 1, we discussed judicial ethics and how cloistered members of the federal judiciary are, his role in investigating President Nixon in Watergate and his role as lead prosecutor investigating many Members of Congress in the Koreagate investigation, among other things.
In this installment we start out talking about Judge Michel’s work for Senator Arlen Specter and how today there seems to be a slow and steady decline in the checks and balances intended to be a part of the federal system. This lead us into talking about the Founding Fathers and how they viewed intellectual property, and patents in particular, as critically important. We discussed how the Patent Office used to be held in such esteem by the Founding Fathers and many generations, and how that seems to be a relic of the past. We also discussed how Judge Michel would like to become “public nuisance #1″ and a trouble-maker as he attempts to proselytize for the patent system and a more responsible federal government.
Judge Paul Michel, University Club, Washington, DC, July 9, 2010
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.