Posts Tagged: "Judge Paul Michel"

The third annual IPWatchdog LIVE conference opened with panels examining global trends in IP policy and a review of U.S. Supreme Court case law, as well as the presentation of the third annual Paul Michel Award, which each year honors a respected industry leader and advocate for fairness in the IP community. On a panel that detailed some of the most recent U.S. Supreme Court’s IP decisions, retired U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Paul Michel described the arguably contradictory holdings in Google v. Oracle and Warhol v. Goldsmith as “useless” in terms of substantive guidance from the Court. “These two cases represent a failure on the part of the Supreme Court to provide meaningful guidance to users who need it now,” Michel said. Professor Llew Gibbons of the University of Toledo College of Law explained the holdings in each of the cases and concluded that “I couldn’t find a principled reason other than ‘we want to come out differently’” for the Court’s ruling in Warhol, considering the Google decision.

Anyone reading this by now knows of the current situation with Judge Pauline Newman and the investigation initiated by Chief Judge Moore. As a former chief judge of the Court of Appeals for the Federal Circuit, I understand the challenges of overseeing smart, independent, and strong-willed judges, and I’ve gained a somewhat unique perspective on the ongoing saga, albeit as an outsider.

On the evening of July 5, inventor advocacy group US Inventor hosted a webinar to discuss the Patent Eligibility Restoration Act (PERA) recently introduced into the U.S. Senate by Senators Thom Tillis (R-NC) and Chris Coons (D-DE). The featured guest speaker was Retired U.S. Court of Appeals for the Federal Circuit Chief Judge Paul Michel, who has been involved in the development of PERA’s draft legislative text and has personally supported PERA as an important step in “reviv[ing] the faltering U.S. innovation system” by abrogating the series of U.S. Supreme Court rulings that greatly expanded judicial exceptions to patent eligibility under 35 U.S.C. § 101.

As of the morning of June 20, which was the deadline for public comment on the U.S. Patent and Trademark Office’s (USPTO’s) advanced notice of proposed rulemaking (ANPRM) on Patent Trial and Appeal Board (PTAB) practices, the agency had received nearly 14,000 comments. On either side of the debate, the USPTO’s proposed “compelling merits” standard for circumventing Fintiv discretionary denials generated a great deal of feedback. The following comments from well-known thought leaders and companies encapsulate many of the issues that the USPTO must navigate as it contemplates changes to PTAB practices.

On day one of IPWatchdog’s Patent Litigation Masters program yesterday, the U.S. Supreme Court denied two patent eligibility cases that the U.S. Solicitor General had recommended granting. The denials make it fairly clear that the High Court is not interested in helping to resolve the current problems with U.S. patent eligibility law, which generally have to do with a lack of clarity, arguably fostered by many of the Court’s own precedents. Following the last panel of the day on Monday, in which speakers discussed ways to improve and streamline patent enforcement in America, retired U.S. Court of Appeals for the Federal Circuit Chief Judge Paul Michel told IPWatchdog he thinks the Supreme Court’s refusal to take up patent eligibility is self-serving. “I think the Court doesn’t want to admit they messed up the law in the four decisions – Bilski, Myriad, Mayo and Alice. They don’t even admit that it’s a big problem, but it is a huge problem, and everybody in the patent world knows it’s a huge problem,” Michel said.

During IPWatchdog’s Life Sciences Masters 2022 today, Retired Chief Judge of the U.S. Court of Appeals for the Federal Circuit (CAFC) Paul Michel said a lot could be fixed by the CAFC itself with respect to patent eligibility law if it would just go en banc more often. “By my recollection the Federal Circuit hasn’t gone en banc on a major patent case in a decade,” Michel said. “And yet, all CAFC judges are on record saying that 101 law is a total mess and needs to be fixed.” Michel was speaking on a panel moderated by Laura Smalley of program sponsor, Harris Beach, and including Mike Cottler of biosimilars company Alvotech and Tom Stoll of Genentech. The panelists were discussing the effect of U.S. patent eligibility law on the life sciences industry, including the potential impact of current efforts to reform patent eligibility law, such as Senator Thom Tillis’ (R-NC) Patent Eligibility Restoration Act. While Michel said he believes it’s ultimately Congress’ job to make the kind of policy judgments the Supreme Court and Federal Circuit have been making in this sphere, there is still a lot more the Federal Circuit could be doing to help the situation

In consultation with Chief Judge Paul Michel, IPWatchdog is pleased to announce that Andrei Iancu, former Under Secretary of Commerce for Intellectual Property and Director of the USPTO, and current partner at Irell & Manella, has been selected as the 2022 recipient of The Paul Michel Award. He will be presented with the award on Sunday evening, September 11, 2022, at IPWatchdog LIVE 2022. The Paul Michel Award, created with the blessing of Chief Judge Paul Michel (CAFC, ret.), is awarded annually to someone within the IP community who has selflessly served the best interests of the industry and its members as a respected leader, mentor, and advocate on behalf of fairness and for the best interests of the intellectual property system.

The LeadershIP 2022 Conference, for which IPWatchdog was a partner, took place earlier this week in Washington, DC, and featured leaders in U.S. government and intellectual property (IP) discussing the way that IP policies interact with and impact national security issues. The overarching sentiment from panelists was that all three branches of U.S. government are failing to prioritize a strong IP system, which could result in the United States falling behind as an innovation leader, to the benefit of potential bad-faith competitors like China and Russia.

On March 2, amicus briefs were presented to the U.S. Supreme Court in support of petitioner Universal Secure Registry’s (USR’s) appeal from the U.S. Court of Appeal for the Federal Circuit (CAFC), which challenges that court’s application of the Alice/Mayo framework on Section 101 subject matter patent eligibility in invalidating patent claims owned by USR. Both amicus filings urge the Supreme Court to rein in the Federal Circuit’s expansive application of Alice/Mayo, which has gone far beyond the original bounds intended by the Court. One of those briefs is made even more persuasive by the fact that it was authored by Judge Paul R. Michel, the former Chief Judge of the Federal Circuit.

In early November, the University of Illinois Chicago (UIC) School of Law held its 65th Annual Intellectual Property Law Conference. The program consisted of five plenary sessions and ten breakout sessions featuring candid discussions and networking sessions with judges, senior government officials, and leaders of supranational IP offices, multinational corporations, law firms, academia, and nonprofit organizations. IPWatchdog’s Founder and CEO, Gene Quinn, moderated the second plenary session, “Global Patent Issues.” The program kicked off with a featured panel consisting of Andrei Iancu, Partner at Irell & Manella, Former Under Secretary of Commerce for Intellectual Property, and Former Director of the U.S. Patent and Trademark Office; the Honorable Paul R. Michel (ret.), former Chief Judge of the U.S. Court of Appeals for the Federal Circuit; and Brad Watts, Minority Chief Counsel for the United States Senate Judiciary Committee, Subcommittee on Intellectual Property. Professor Daryl Lim, Director of UIC’s Center for Intellectual Property, Information and Privacy Law, moderated the discussion.

The extreme uncertainty that U.S. patent eligibility “validity goulash” jurisprudence has caused is wreaking havoc on inventors, especially those working on emerging technologies. It is also hindering patent owners’ ability to enforce their property rights, investment and licensing deal-making, and giving China advantages in global competitiveness. And it’s likely to get worse before it gets better. Those were takeaways from the Eagle Forum Education & Legal Defense Fund’s (EFELDF) “The Sorry State of Patentability: ‘Anything Under the Sun Made by Man’ No More” program in Washington, D.C. The September 29 event’s panelists considered patent eligibility from the Chakrabarty decision, which ruled a manmade living microorganism was patent-eligible, to dubious, damaging, judicially-created exceptions in such cases as Bilski, Mayo, Alice, Myriad and American Axle. The participants made painfully clear that the Alice-Mayo Framework doesn’t work and course correction is long overdue.

Day one of IPWatchdog LIVE 2021 in Dallas, Texas, kicked off on Sunday, September 12, with a fireside chat between David Henry of sponsor Gray Reed and Judge Alan Albright of the United States’ most high-profile district patent court; panels on patent monetization and the Patent Trial and Appeal Board (PTAB) post-Arthrex; and IPWatchdog’s first ever Paul Michel Award, which went to David Kappos of Cravath Swaine & Moore.

In India, a similar administrative adjudicatory body to the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO), called the Intellectual Property Appellate Board (IPAB), was constituted by a Gazette notification of the Central Government in the Ministry of Commerce and Industry on September 15, 2003…. However, the IPAB was eradicated by the Central Government of India by way of the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021, published in the Gazette of India on April 4, 2021…. To address the backlog and growing number of cases, the Delhi High Court, on the recommendations of a two-member judge committee, recently announced the creation of the Intellectual Property Division (IPD) in a press release titled “Creation Of Intellectual Property Division in the Delhi High Court.”

The final day of IPWatchdog’s PTAB Masters™ 2021 program kicked off with more than 1,070 registrants and a discussion featuring retired U.S. Court of Appeals for the Federal Circuit Chief Judge Paul Michel, Meredith Addy of AddyHart, and IPWatchdog Founder and CEO Gene Quinn about the many obstacles facing patentees today in light of the Patent Trial and Appeal Board (PTAB) and an overburdened Federal Circuit. Michel said that, a decade after the America Invents Act (AIA) was passed, with the real-world knowledge we now have of the PTAB, “conclusions and practices should change in light of experience. When facts change, views should change.”