The Honorable Paul Redmond Michel was appointed to the United States Court of Appeals for the Federal Circuit in March of 1988 by President Ronald Reagan. On December 25, 2004, he assumed the duties of Chief Judge. After his elevation to Chief Judge, he served as one of 27 judges on the Judicial Conference of the United States, the governing body of the Judicial Branch. In 2005 he was appointed by Chief Justice Rehnquist to also serve on the Judicial Conference’s seven-judge Executive Committee. On May 31, 2010, Chief Judge Michel stepped down from the bench after serving more than 22 years on the court.
In his years on the bench Judge Michel judged thousands of appeals and wrote over 800 opinions, approximately one-third of which were in patent cases.
Prior to his appointment to the bench, Judge Michel was assistant district attorney in the Office of the Deputy District Attorney for Investigations in Philadelphia from 1966-74, as well as a Second Lieutenant in the United States Army Reserve from 1966-72. From 1974-75, he was the Assistant Watergate Special Prosecutor, and from 1975-76 was assistant counsel to the United States Senate Select Committee on Intelligence. He then became the deputy chief and Koreagate prosecutor for the Public Integrity Section of the United States Department of Justice from 1976-88. He was the associate deputy U.S. attorney general in 1978 and in 1981 became counsel and administrative assistant to U.S. Senator Arlen Specter until his judicial appointment. He has served as adjunct faculty at several institutions of higher education including the George Washington University Law School and John Marshall Law School. In 2012 he joined the Intellectual Property Advisory Council at the University of Akron School of Law.
Judge Michel has been the recipient of numerous awards including the Jefferson Medal, the Frederico Award, the Katz-Kiley Prize, the Eli Whitney Prize, the Sedona Conference® Lifetime Achievement Award, and awards by the ABA Section of Intellectual Property, AIPLA, IPO, the Linn Intellectual Property American Inn of Court, and other leading organizations. He was named one of the 50 most influential leaders in intellectual property in the world by Managing Intellectual Property magazine and inducted into Intellectual Asset Management magazine’s International Hall of Fame.
A frequent speaker on IP subjects, he has also testified before Congress on patent reform legislation and has served as Special Advisor to the Patent Reform Task Force.
Judge Michel earned his B.A. from Williams College in 1963and his J.D. from the University of Virginia in 1966.
The Court of Appeals for the Federal Circuit, the nation’s patent court, is at a crossroad. Today, unlike in earlier decades, nearly all its cases are patent-related, yet, to my eye, barely half its members can be considered lifetime patent lawyers. And although any diligent lawyer can learn “black letter” patent law on the job (as I myself did), that is no longer sufficient, because judges also need a deep understanding of how inventors and investors, including corporate CEOs, rely on patents in making difficult and fateful decisions about whether to fund new R&D and manufacture new products, or not. Such decision-makers crave predictability of outcome and stability of legal requirements. Because uncertainty generates excess risk, when in doubt, they usually opt against going forward…. To me, this all suggests that the nominee to fill the vacancy on the CAFC expected in May should be a seasoned patent litigator.
On Monday,, March 2, an Amici Curiae Brief in Support of the Petition by American Axle was filed by Senator Thom Tillis, Honorable Paul Michel and Honorable David Kappos. The three amici conclude that they are “all convinced that section 101 is gravely damaging our country’s ability to succeed in the race for global innovation leadership, and all convinced that the solution to the dilemma lies with the Court taking up the American Axle case.”
If you’re looking for some positive patent news from 2020, count the heightened civic awareness of our intellectual-property/innovation policies, as a result of the global pandemic, as a silver lining. But our present task is to report on the 2020 highlights from the Federal Circuit; unfortunately, it’s all downhill from here. If 2019 had Section 101 law as its defining issue, given the Federal Circuit and
Supreme Court’s slate of rulings and non-rulings, 2020 only seemed to make the Section101 exclusions even broader. The capstone was AAM, Inc. v. Neapco Holdings LLC, 966 F.3d 1347 (Fed. Cir. 2020), the Federal Circuit’s denial of en-banc consideration (again) of Section 101 rulings that, all judicial protests aside, seemed to plainly expand a reviewing court’s power under Section 101 (again). And in ways many would’ve thought unimaginable just six-to-eight years ago, when Mayo-Alice emerged from the Supreme Court with only “inventive-concept” tests ringing about. Neapco’s panel ruling in the fall of 2019 was the proverbial shot across the Section112 bow.
An untold story of the patent “reform” era is how the High Court (as well as the Congress) blithely accepted an exaggerated narrative spun by the PR campaign of the Coalition for Patent Fairness (CPF). It might have been more accurately named the “Coalition for Patent Weakness.” That is what its massive PR/lobbying campaign relentlessly sought and the result CPF members ultimately got, including at the Supreme Court. But how did it happen? To see it emerging, one need only look at three opinions of retired Justice Anthony Kennedy: eBay in 2006, KSR in 2007 and Bilski in 2010. Then compare his many factual assertions, although unsupported, except for two, to the widely publicized narrative of the CPF.