On Tuesday, October 19, 2010, I attended the retirement dinner and reception of the Honorable Chief Judge Paul R. Michel of the U.S. Court of Appeals for the Federal Circuit at the Mandarin Oriental hotel in Washington DC. As fate would have it, I got lost on my way to the party. Even though I thought I gave myself plenty of time to get there, I arrived right before dinner. Upon arriving I spotted David Kappos, the Director of the USPTO. I introduced myself and was very warmly welcomed. I had the distinct pleasure of sitting with David Kappos during dinner, in between him and Todd Dickinson, Executive Director of the AIPLA. Among others at our table were Matt Rainey of Intellectual Ventures, LLC, the Honorable Judge Edward Damich of the United States Court of Federal Claims and the Honorable Judge Pauline Newman of the Court of Appeals for the Federal Circuit. After dinner the celebration began with a video featuring numerous speakers and a toast. What follows is a recap of the evening’s events, as well as some quotes on the record from several distinguished guests that were at the event to celebrate with Chief Judge Michel.
Senator Arlen Specter Video
During desert, a video in honor of Judge Michel featuring Senator Arlen Specter was played. Senator Specter’s experience with Chief Judge Michel dates back to his days as a prosecutor in Philadelphia. Senator Specter spoke of the many accomplishments of Chief Judge Michel before he became a judge and he stated that in his years since knowing Chief Judge Michel that no one has known as much about criminal law as he did. The Senator ended his comments by saying, “Paul, you’ve had a tremendous career and perhaps like many of us you are looking for a 2nd or 3rd career.” (laughing) I wish you all of the best of luck.”
Judge Lourie of the U. S. Court of Appeals for the Federal Circuit
Judge Lourie had the distinction of coming to the podium after the Chief Judge Michel Celebration Quartet, which was made up of previous members of the law clerk community. Two played violin (Austin Willoman and Kirby Lee), one played viola (James Smith) and another was on cello (Russell Roland). They were amazing, which prompted Judge Lourie to start his comments by saying: “Those guys are a very hard act to follow.”
Judge Lourie went on:
This is a great crowd and a wonderful privilege to honor Paul Michel. I am honored and privileged to be asked to speak on his behalf. I should say that my remarks are mine only. I have not circulated them around the Court. (audience laughter)… but I am confident that if I sent them around to ask to propose an opinion I would get unanimous joins with no dissents.
But there is one aspect of Paul Michel that has not been noted inside the Court or out, and it reflects quite favorably on his respect for his colleagues. Chief Judges presided over all en banc cases, and if they are in the majority, they can assign majority opinions themselves. Many people regard en banc opinions as a mark of distinction. After all en banc cases are often most important cases for a judge to decide. Judge Michel assigned very few such opinions to himself. He gave the limelight to his colleagues. Looking back I’ve found one major en banc case that he authored but there are nearly 10 times as many that he assigned to his colleagues. That is a reflection of his respect for his colleagues and a willingness to let the light shine on them rather than on him. That is a mark of an admirable leader.
There are many other contributions that Judge Michel made to our court. But I think that I have conveyed a sense of the impact that he made on us in addition to just assigning cases, which of course is our major task. While Chief Judge Rader has taken the reins and will make many of his own contributions, he has shown every indication of following the statutory practices of his predecessor. Imitation is the sincerest form of flattery. We miss Paul Michel and Brooke as well. We see his portrait in our lobby every day and remember his many contributions to the court. The court is diminished without him, but we wish him well in his new endeavors.
Chief Judge Michel Receives a Gift
Janet Gongola, one of Chief Judge Michel’s former clerks, presented him with a gift. She explained:
Judge Michel, as one of your former law clerks it is my privilege to present to you a special gift on the occasion of your retirement. I do so on behalf of your family, your colleagues, your friends, your law clerks, those that are present here and those who are joining us in spirit. You have dedicated your life to the law and your words constitute our Intellectual Property. Your influence has touched many people; your colleagues on the bench, the lawyers who appear in front of you, the law clerks whom you have taught and mentored. You are part of us now, through guidance and lasting inspiration. To commemorate the legacy that you leave behind, after decades of devoted public service, several of us have written personal letters to you. When you read these letters you will see for yourself the lasting impact that you have made on all of us, professionally as well as personally. Your colleagues on the bench describe your life’s work as an outstanding tapestry of accomplishments. Preeminent members of the bar speak in reverence of you. And your law clerks express deepest gratitude and admiration. So tonight we present this collection of letters to you in leather bound volume from us with great affection. We thank you. From all of us, our lives are forever changed because of you.
The Honorable Chief Judge Paul R. Michel
Chief Judge Michel then got up to accept the gift presented to him and spoke to the crowd. He said:
I suppose it is the work of lawyers and judges to work by words; written words, spoken words, but I must say that tonight the words elude me because I am extraordinarily moved by this occasion and this outpouring of affection and collegiality of so many leaders of the bar and I had no idea of how affected I would be when this occasion came until I was half way down the escalator and I stopped breathing (laughter) seeing all of you down there enjoying each others company and cocktails. It was just an extraordinary feeling and it has just grown and grown and grown since then. I don’t think anybody could possibly deserve the compliments and the expressions of respect that I’ve received from so many of you, letters and phone calls and the open comments here at the podium. It’s very moving, its very touching it is about the best thing. They say that the greatest feeling in life is bungee jumping (laughter) but don’t believe it. The greatest thing in life is having this sort of gathering with so many people that you’ve learned from and worked with and respect and like and love to be with. And so I love to be with every one of you in this room and to have all of you here, together tonight. This is fabulous. I’m very honored by your presence.
And it’s a real pleasure for me and for Brooke to just be with you. That’s the exciting thing. That’s what matters the most. I was on the court for 22 years and 2 months and 2 weeks. I liked it so much that I sort of imagined that when I was 99, that I would be carried out of the courthouse in a pine box with a smile on my face. (Laughter)… I’ve only been a private citizen in the private sector with reinstated First Amendment rights for 4 months, and I’m still getting used to it. I very much enjoy speaking among the alphabet soup that we are all so familiar with, the ABA, AIPLA, IPO, etc.
I miss my colleagues on the court and I miss the court staff. And I am extraordinarily moved by the presence tonight of so many people from the court house, court staff, circuit executives, fellow judges and other colleagues right down through all of the different corners of the staff including three beloved colleagues from the security force. So everyone from the courthouse is represented here tonight and I am very indebted to all of you…
You don’t know how lucky I’ve been. What a fortunate, incredible experience to work with and be friends and to become part of the lives of all of you here in this room. Nothing could be richer or more rewarding and I thank you for being here tonight, but I especially thank you and all of those who couldn’t be here as well for being such important parts of my own life, my own career and my joy.”
Some Distinguished Guests Go On The Record
As part of my coverage of the celebration, I took some time after dinner to introduce myself to a few of his guests and asked them to tell me what they feel was Judge Michel’s impact on patent law and on themselves as colleagues of his.
David Kappos, Director of the United States Patent & Trademark Office
Renée: David, would you please tell me what you feel Judge Michel has meant to patent law?
Kappos: Judge Michel has been quite instrumental and helpful in the world of Intellectual Property and patent law. He has and still is playing the role of the good steward of the system. His impact is even more profound now that he is able to comment openly and is really trying to educate people of the importance that intellectual property plays in the advancement of technology and business in general.
Judge Edward Damich of the US Court of Federal Claims
Renée: I was wondering, would you be willing to give me a quote on what you think Judge Michel’s tenure has meant to the patent world?
Damich: Our interaction was mostly on administrative matters and we worked extremely well together. In fact so much so that really he was a confidant of mine and we would put our heads together and share our insights and I found him to be such a person of wisdom; I often took his recommendations. He was almost like a mentor to me in that respect…
Renée: That’s all I’ve been hearing is wonderful things about him. And how do you feel that he impacted patent law over the years?
Damich: I think that his attempt to bring organization and predictability to patent law will really stand as a monument despite the fact that the Supreme Court, I think, failed to appreciate that. (laughing)
Renée: But isn’t that always the case in any position we hold?
Damich: Exactly, You’re right. From a trial court level from a judge that does patent cases, what we really want basically is enough clarity as the subject matter allows and as much predictability as it allows. And I think that he and the Federal Circuit Judges in general, attempted to do that…
Renée: Well I think that we are all glad to see that he, as he put it, was reinstated with his First Amendment rights, that he hasn’t just stepped down and that he plans to continue in the grand battle. And I think that it’s really commendable that even after retirement, he is continuing to devote his life to patent reform and really changing things. It’s a wonderful thing.
Damich: Yes and obviously we members of the Judiciary are constrained as to what we say and our views. We can’t take a political view and we can’t be engaged in the legislative process other than as it affects us directly. In a sense I kind of admire his freedom. Maybe in 2013 when I become a Senior Judge I may have something similar to him.
Q. Todd Dickinson, Executive Director of the AIPLA
Renée: Would you tell me how you feel that Judge Michel has impacted patent in law in his years on the bench.
Dickinson: From the standing start he has become a seminal presence in terms of how the law gets crafted in the broadest sense. Through things like his encouragement of en banc review and his general leadership as the chief judge, he understood the importance of the Court to the development of intellectual property and particularly patent jurisprudence.
Sarah Reardon, Attorney, Office of the General Counsel of the US Merit System Protection Board and Current President of the Federal Circuit Bar Association
Reardon: When I had my first oral argument and Judge Michel was on the panel it was quite daunting because he asked a lot of questions. And then I realized that the questions that he asked were questions, which indicated that he had read the record; he was familiar with the record. And then after a while you realized that all he was doing was asking you questions to allow you to put your best arguments forward because the court sees oral arguments as an opportunity for the attorney to let the judges hear what they think is important and that oral arguments are seen as assisting the judge. As long as you keep that in your head, “OK, I’m down here in oral argument but the purpose of this is to assist the judge and to allow me an opportunity to get my point of view over, maybe to allow them to ask questions about some things that I may not have said very clearly in my brief.” And after that, once he asked the questions, I make an effort to try and answer his questions and I am familiar with the record and I am relaxed.
Renée: So you feel that that has molded you and how you respond?
Reardon: Oh absolutely. Actually you prepare yourself because you never know who is on the panel and you never know when he’s on the panel. And so you Moot Court everything. But you want to have questions with the moot court team so that hopefully they will think about everything that a judge could possibly ask. Now if you are familiar with the record and you are familiar with the law associated with that case, you can answer their questions. You may not be able to answer them all but you can answer their questions. And after a while I came to really, really respect him and I really, really like him because he asks you questions about your case and he allows you to put your best foot forward.
Charles Schill Partner with Steptoe & Johnson, LLP.
Renée: What we are asking people tonight is how they feel that Judge Michel has impacted Patent Law over the years and what you think of him as a person. Also, to what capacity have you worked with him?
Schill: I was President of the Federal Circuit Bar Association for a year just before he was Chief Judge. And the end of my term was when he had just become Chief… He has been for me both a mentor of legal issues and a friend.
Renée: And that has been the consensus all evening. Everyone that I have spoken to has said that.
Schill: He has a unique combination and insight because of his legislative and prosecutorial background. Coming into the Court, I think, lent him a real understanding of the place of the Court in civil society and also in this IP area, which wasn’t a strong point for him before he came to the court, but he adopted it when he got there. And I think that his education in the IP arena coincided with the rise of IP in commerce and in the understanding of society and the role of IP and how important it is in our society. So I think he had a big part in fostering that both as a judge and eventually as Chief on the Court and I think that is something that he is still very much an advocate and proponent of is trying to create a real awareness of how important IP is to our society. He has a unique position in which to do that from, both his coming from the Court and his understanding of IP law. So there couldn’t be a better spokesperson and advocate for the IP World than Judge Michel.
Renée: And I think its fabulous how now that he’s off the bench that he has continued to work towards patent reform and educating folks that are not necessarily as informed about IP. The consensus has been that he’s been a mentor a just a wonderful person over all.
Shill: And he really is. He’s a great guy and things like this, having people show up for this kind of event is really a great testimony as to how much they care for him.