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.
QUINN: Okay. And then you went from being at the DOJ for a while to then going and joining Senator Specter’s staff.
QUINN: Reuniting yourself with your first boss?
MICHEL: He was my first boss right out of law school for seven years plus, and he was a terrific boss. He promoted all of the young prosecutors as fast as they could show they could do the next level of work. And he didn’t have any bureaucratic restraints or rules. Like Leon Jaworski, he had a fabulously talented staff. Jaworski’s people are world famous. They include President Clinton’s cousel Chuck Ruff, Supreme Court Justice Stephen Breyer, a raft of federal judges all over the country, including Breyer’s brother, Charles Breyer who is a district judge in San Francisco and John Koetl in New York City, and many others. So that Watergate group was much like playing on a Baseball All-star team. Everybody there was a star, every single person.
Now the DA’s office in Philadelphia was larger and not everybody was a star but he had a very large number of extremely strong lawyers, many of whom also went on to become well know federal judges, or leading law firm partners and so forth. So it was great working for Specter because the work was fascinating; he was a very demanding, hard charging, hard working, creative boss, but it was a great way to learn. I mean, you couldn’t have a better teacher. We were doing all kinds of stuff that was unheard of. We were suing construction companies for spraying asbestos under a common-law nuisance theory. We were doing environmental protection before there was even an EPA. We were suing people who were dumping stuff in the rivers. We sued the public bus company for not maintaining their busses so that the pollution from the exhaust was way worse than it should have been. And those are just a few examples. But it was a great place to work. It was a great learning experience.
So what happened was Specter ran for governor in 1974 or ’76, I forget which and was not successful. So he went into private law practice and he asked me if I wanted to join him. I thought about it, but I ended up thinking I wanted to stay in public service as I had always intended. Then in 1980 he ran for the Senate. He was elected and took office in early ’81. He called me up and asked me to come back and work with him again. I actually told him no three times, in three separate lengthy conversations and the fourth time I finally relented because he had given me such a great start as a young lawyer for that first seven years. I really felt I owned it to him to help out. So I told him, “Okay, here’s what I’ll do. I’ll leave this job that I have at the Justice Department.” I actually loved being an Associate Deputy Attorney General. I was a top lieutenant to the number two guy in the Justice Department. I was helping supervise the FBI and the Marshalls Service, and the Border Patrol, and the U.S. Attorneys and all their prosecutions. It was a great, interesting job. I was very reluctant to leave it.
I said, I’ll agree to come up and help you for six or seven months to organize the office and get it started. I ended up staying seven years. So I worked for him for seven years in the DA’s office in Philadelphia. About seven years we went separate ways, and then we teamed up again in early ’81 and worked together for another seven years. So there was a period of my life, a long period of my life where I had worked for Arlen Specter longer than any other boss. It was 14 years, but of course, having now served 22 years on the court that is my second longest tenured job. He was a great teacher both times and a terrific boss; very demanding, very hard working, very fast moving, very creative, very persistent, tenacious, aggressive and bold but it was a fabulous learning experience. Of course, I’m learning about litigation and prosecution in the first job, and in the second job I was learning about everything. He was involved in everything. I was learning about nuclear arms control negotiations, I was learning about coal mine safety, I was learning about whether the Japanese yen needed to be revalued, or if our economy was going to survive, and all sorts of things. There must have been a thousand different subjects that we worked on together, and the whole rest of the staff of course, during the seven years I worked with him. Once again it was a fabulous education. Looking back from the perspective of being on the court, it couldn’t have been a better preparation for being an appellate judge because you read stuff written by experts, and by lawyers and lobbyists who represent companies and clients and experts. And you have to learn really fast about subjects you did not know anything about. And you have to learn to sort out all these conflicting claims and inconsistent statistics and evidence. So it was actually a great preparation. Probably no one would think this, but it actually turned out to be wonderful preparation for being a court of appeals judge.
QUINN: No, I can certainly understand why. I mean, sitting here listening to you chat it seems clear that you’ve seen Washington inside the Beltway here from many different angles, and played many different roles. It almost seems like you could probably write a book, lay this all out and give people a tremendous behind-the-scenes look. I don’t want that to dominate, because I want to get into the Federal Circuit, but just to wrap this area up is having observed D.C. from the inside, what, if anything, has surprised you that you’ve learned over the years? Not learned factually, but learned in terms of a life lesson or philosophy?
MICHEL: Well, I think that constant vigilance is a critical attribute if governance is to work right. I don’t just mean vigilance by prosecutors or FBI agents, but vigilance by everybody in the whole governmental structure, federal, state, or local. I think a problem in our society is that people flip from one hot topic to another and then they forget about the first problem or scandal, and then ten or 20 years later it blows up again because it’s been unattended to in the meantime. So its of the utmost importance to constantly, every week, every month, every year keep managing all of these different challenges and problems. You can’t do it once every ten or 20 years, you’ve got to do it every year in a steady, sustained, robust effort. And anytime it lags, trouble follows automatically whether it’s a political scandal, or an economic collapse, or industrial decline. So the importance of constant attention and proper priorities, and patience, it’s hard to overstate it. The other thing is that all the players in government are so dependent on the other players. So the legislature has to work well with the executive, and with the courts, and with each other, and the House has to work well with the Senate and so on. If that starts to break down, the country suffers terribly. And I think that in the 36 years I guess it is that I’ve been in Washington, there’s been a slow, steady decline in the checks and balances and the coordination and cooperation among the branches and among all the different players. As a result, the country is suffering in ways that it didn’t need to suffer, shouldn’t be suffering. And so one of my big goals in retiring and becoming a public spokesperson is to try to reverse that decline and help, along with lots of other people, of course, to move the whole government structure and political system in a more constructive direction so that all the citizens and the economy and job creation and so forth will benefit.
QUINN: That’s something that we chatted about a couple weeks ago, I think, when I first met you. About how you thought, and I’m paraphrasing, maybe we can get your thoughts on this to elaborate, that the type of change that we need, and we, at the time, I think, we were primarily talking about job creation, innovation, technology, the patent system, that the public at large really needs to get engaged. We’re in a pretty small niche, a very small pond, which seems to me is critical to the economy. So how do we get the masses engaged to get them involved so we can change policy in a positive way?
MICHEL: Well, I don’t know that the masses, that every citizen needs to be involved very directly. I do think that lots of people other than people in the IP community need to be brought into action. But I’m thinking particularly of key journalists who write about business or economic matters. I’m thinking about business leaders who aren’t themselves directly part of the IP community, but benefit from it. And if they were better informed about how badly neglected, for example, the patent office has been for almost 20 years, and especially in the last ten years, they would be shocked, and they might be motivated to get active. Everything is so much controlled by Congress in the final analysis because the budget, the spending level of every agency is micromanaged by Congress. The patent office basically has been starved for funds for 20 years. It’s horribly eroded the ability of the patent examiners to do their job well, much less quickly. You yourself know all of what they need; vastly better computer systems, and higher pay, and a larger number of examiners, and more reasonable time per examination, particularly in complex cases, and so on. But most people don’t know about this. And if they knew they’d be shocked, they’d be upset. So one of my goals is to try to become an educator, an advocate, a trouble maker, I guess, to try to show those people in the journalistic community or the political community or the business community that we need to immediately revive the patent office and greatly strengthen the courts, and strengthen the whole investment in innovation and in technological development.
I don’t know about the masses, but I’m sure that we need to get people who will influence legislators, because they’ve got the total control of the critical spigots and unless they are motivated to do better, they won’t do better. And the people who can motivate them are the key journalists and the key business community leaders. So they’re the two groups that I’m going to try to proselytize, in my new job as a public nuisance #1.
QUINN: So in other words you want my job, the troublemaker. (laughter)
MICHEL: Well, we each have our role. I think there’s plenty of room for many people.
QUINN: For more than one troublemaker. (laughing) I’m just joking. I just read something recently about the Fourth of July and to talk about how we almost lost the Declaration of Independence to a fire because the patent office burned down. And the premises was thank God that the Declaration had been moved a year or so earlier out of the patent office and preserved somewhere else. And my thought was I didn’t even realize the Declaration of Independence had been displayed at the patent office. And there are little bits of these history pieces about the patent office. I don’t know whether it’s true or not, and you hear it over and over again about how the British burned Washington down in 1812, the War of 1812, but didn’t burn the patent office down. I believe it was President Lincoln held one of his inaugural balls at the patent office. And we’ve gone from the exalted view of a place where we were willing to display for a couple of generations our Declaration of Independence to an agency that’s just been starved for funding and respect. How did we get there? What do you think led to this sort of societal, almost, and I do think it is societal, turning a blind eye to the patent office?
MICHEL: Well, I think most people are distracted most of the time by things that I would consider relatively trivial. And the permanently important things, like the patent system and the patent office tend to get neglected when everybody’s attention is diverted onto other matters. So I think it is, as you say, a broad problem in the culture. We’ve gotten so focused on what’s the hot new thing in the media, what’s the latest scandal, what’s the latest great movie or TV series or something and we’ve lost sight of the basics, the things that make the foundation for our economy, our technology or our employment. So I’m very big on the idea that you have to focus on the basics, build the foundation. The rest will take care of itself if you strengthen the foundation enough. Some people are using the phrase “innovation infrastructure.” And it’s an interesting phrase to me because it includes lots of things; the patent office, the courts, the trade commission, the White House IP czar, the customs people, and many others and of course thousands and thousands of lawyers and thousands of companies, and universities and research institutes, independent inventors and all the rest. But we need to strengthen the foundation and that means paying attention to it instead of ignoring it. I don’t think anybody set out to ruin the patent office, I don’t think that people set out to downgrade its priority in American life. It just got neglected. It just got overlooked. It got forgotten. It was off the radar. It was out of sight, it wasn’t a hot sexy thing, so it was assumed to be not important. And so I’m trying to help make it important again because inherently it really is extremely important as the founders immediately realized. Not only does the Constitution indicate that Congress should create a patent system, a copyright system, one of the very first enactments of the new Congress was the first Patent Act.
QUINN: Written by Thomas Jefferson.
MICHEL: Well, I think he wrote the second one. I’m not sure who wrote the first one. But in any event, the founders clearly understood the extreme importance of a good patent system and so did people in Lincoln’s time, and in other eras. But it ebbs and flows the way many things do and I think that we’ve been in a very big ebb for the last ten or 20 years in terms of the Congress and the government overall neglecting the patent office and the entire IP system in this country.
QUINN: Not to belabor this point, but maybe one more foray into it. I agree with everything you just said, and I think that if we can’t really kind of try and put our finger on, okay, this is where the term started, or this is where it accelerated, or this is the causing of the general malaise, it’s gonna be a little bit hard to turn the ship about. And it strikes me that the easy scapegoat would be the cable news cycle and there’s the 24-hour news, and everybody’s chasing the hot story. And I think that’s wrong because I think that that’s important, people are far better informed now than they ever have been. And it also ignores the fact that this whole sort of decline of importance occurred well before there ever was even cable television or certainly before there were this cable news cycle we live in now. Do you have any thoughts? If you were to put your finger on a timeline, when do you sense there was this shifting?
MICHEL: 1992. When Congress started stealing the patent office fee money. And as I understand it, they’ve now diverted well over $700 billion in various years starting in 1992.
QUINN: 700 billion or million?
MICHEL: I’m sorry, $700 million. And again this year after several years of desisting from that diversion, they’re again diverting over $200 million of patent office fees. So if you take the total time span from 1992 through September 30th of this year, the current fiscal year, the Congress will have diverted, I always want to say “stolen” a billion dollars of money that the patent office desperately needed to have more modern IT systems, to have pay scales that would encourage examiners to stay more than several years or so. So I would pin it there. I think in the 80s the patent system was healthy. Patent grants were fast. They were usually quite accurate. Enforcement was way better than it had ever been. The Federal Circuit clarified and unified and strengthened the law in a way that I think was quite appropriate, and generally quite favorable to patents. But in the 90s that all started to come unglued and it’s been ungluing steadily over that two decade period. But if you want to pinpoint a time, I would say the trouble started when Congress started diverting the money and about the same time the patent office started pressing the idea that the applicant was a customer and the whole idea was to please the customer and so it issued of patent, even if the claims were overbroad. So to the extent that that was sort of the understood push, I think that had a very bad impact. So it was the combination of too lenient on standards and lacking resources because of the diversion.
And also of course the fee levels weren’t raised when they needed to be raised. As I understand it, the fee levels were originally set 25 years ago and haven’t been changed since 2004. But meanwhile the cost of examining has gone way up. You have the diversion on the one hand and the lack of raising the fees on the other hand, and the two, of course, combine and have a compound effect. So I think you can trace the beginning of the erosion to 1992, and the mid-90s and I think it’s had terrible effects. Director Kappos says he’s convinced that there are billions of dollars of value bottled up in the warehouse, and millions of new jobs that would be created if the 750,000 applications that are sitting in the warehouse for a year or two could be promptly and properly examined. I don’t think that’s any exaggeration. That’s an easy way to go about job creation and economic stimulus. This is an extremely low cost way, revive the patent office, to stimulate technological advance and job growth. And I think it’s shockingly brainless that the country isn’t doing that. We spent, what, $860 or 700 billion on economic stimulus, most of which as far as I can tell didn’t do very much. But we’re not willing to spend a far smaller sum to revive the patent office to free up these billions of dollars of value and millions of jobs that Director Kappos says are bottled up in the unexamined backlog of patent applications. To me this is a no-brainer.
QUINN: I totally agree with you, and I’ve been writing about that for a long time trying to get this to happen. Because it seems, mind that the patent office budget is about $2 billion a year. Even if you doubled that it seems to me, and I’m not naive enough to think that Congress would ever double the patent office budget. But even if you do that, it seems to be a rounding error given the amount of money we’re throwing at various other things.
MICHEL: Absolutely. The priorities aren’t right. I agree with you. You can’t blame everything on the 24 hour news cycle, or cable television. I didn’t mean to suggest that that was the main cause.
QUINN: Oh, no, no, no I didn’t mean you did.
MICHEL: But I think there is an attention span problem. I think there’s a lack of priorities problem, there’s a lack of persistent, continual attention to important things. There may be an episodic quick fix, and then everybody seems to go on to something else and we don’t get to sustained, continuous nurturing of the things that need to be nurtured.
QUINN: No, and I didn’t mean, if I did imply that you thought that. I certainly didn’t mean to imply that.
MICHEL: I think it’s part, but I don’t think it’s the main,
QUINN: My thing, just to give you an idea of where I was going when I was thinking about that. And I think almost across the board that if we’re going to try and put our finger on what’s going on in not just our area of interest, but in a whole host of areas, is it almost seems like we’re in this perpetual election any more. And the Founders, as I understand history, consciously wanted to say there’s the House of Representatives gets elected every two years, and they can be emotional and be swayed by the important issues of the day and the people can have those Representatives sent to Washington to make their case. And then you have the Senate elected every six years, and I understand George Washington talked about the hot passions in the House being poured into the cool saucer of the Senate. Which is a brilliant way to describe what typically happens, but with this never-ending election cycle, it seems that we are, as a nation constantly in what the Founding Fathers I think would have thought of as the House of Representatives mindset. So that there’s not any kind of a long term thought into what needs to be done. Because quite frankly, our area is so bad at the moment, there is no quick fix that I see and maybe I can ask you: one, do you see any quick fixes and two, would you agree that we really need to figure out a way to have more of a long term view of how to get to where we need to?
MICHEL: Well, as I said, I think we have an attention span problem. I think the long term view is very important. I think that public policy needs to focus not on tomorrow or the next election or the next quarterly posting of profits, it needs to focus on the long term. Next year and the year after, and the rest of the decade, are we building strength in the company, in the country, in the economy, in technology? Or are we letting it fritter away? I think you’re exactly right. The long term approach is really, really important. Badly neglected and I think priorities are badly skewed. We spend a billion dollars a day on things that I think are quite questionable. Why can’t we spend a billion dollars once on reviving the patent office?
QUINN: Well, that’s a question I don’t have an answer to, but I totally agree.
MICHEL: It’s a question of priorities and it’s a question of what you think is important. I think that the people in Congress, including the senators, not just the House members who as you say, are constantly running for office, constantly raising money, constantly worried about every poll and every newspaper article and so on. But the Senate also has succumbed to this. I was a staffer in the Senate, in effect sitting in the back of the room often watching the senators be senators and I was so impressed by the level of talent and the level of commitment and the level of civility and common sense, and good priorities, and focus on the future, and candor, and honestly, and bipartisanship, and all the rest when I first went there in ’81. And that slowly went downhill the whole seven years I was there. And in the ‘90s and since it’s gone downhill way worse than the slope that I observed from the back of the Senate chamber in the 80s. We now have a situation where it’s not just the patent office that could be called dysfunctional. I think the whole Congress is now practically dysfunctional. And a lot of it is what you say, that there is such intense focus on raising money, getting publicity, scaring away potential opponents, primary and general election opponents, getting more power, getting more headline, getting more press and getting more money. They have almost no time to think and plan and help the country. And I also think that beyond those election and fund raising pressures, that members of Congress have lost sight of why they’re there. They’re really there to serve the future needs of the whole population and of the country. Of course you expect an elected politician to want to get reelected. He wants to be there, that’s why he ran in the first place. And I’m not saying that they shouldn’t spend a lot of time trying to get reelected or get publicity or get campaign contributions. But I think what’s happened is there’s been a shift. It used to be they did a lot of that, but they also did a lot of planning and serious public policy analysis also. And I think the proportion now has gotten completely out of balance. Let’s say it was 50/50 before; now I think it’s 90% me and get reelected, and 10% try to solve some of the problems of the country. And that’s not good enough.
Up next, Part 3, where Judge Michel talks about how only a handful of companies dictate patent reform efforts, how getting involved could lead to balanced patent reform, thoughts on the dysfunctional Congress and what he would tell Congress to do for the Patent Office; namely invest $1 billion in the USPTO immediately.
For more of my interview with the Honorable Paul Michel, see: