Judge Paul Michel Speaks Out on Patents, Congress and the Supreme Court Part 1

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Judge Paul Michel (Retired)

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The Shield Act is “entirely unnecessary”; the America Invents Act was a missed opportunity; and two recent US Supreme Court decisions were “extremely poorly reasoned and very harmful to a well-functioning system” Judge Michel speaks candidly about some of the frustrations he has experienced since stepping down from the bench in order to be free to engage fully in patent debates. In particular, he describes how he testified before a Congressional subcommittee – and the members seemed not to care that he was (perhaps uniquely) a neutral witness, with no axe to grind. Now legislators are talking about further changes to the patent system, with specific proposals in the so-called Shield Act. But Michel says the Act proposed “would do vastly more harm than good and is entirely unnecessary”. Interfering with judges in the ways proposed in the Act would be a “threat to justice” says Michel, adding that the problems with the patent system are that it is too slow, too unpredictable, too expensive and too disruptive – and solving them means investing in the USPTO (probably by paying examiners more). As he says in the video, Michel is at liberty to speak out now he is retired, but I suspect his concerns are widely shared in the judiciary. During the Forum, I moderated a panel that included Michel’s successor as Chief Judge, Randall Rader: when I asked him directly if new legislation (such as the Shield Act) were needed, he said emphatically “No” and argued that parties and judges already have the tools they need to deal with abusive and expensive litigation. I suspect the response from those who feel they have been victims of patent trolls will be: if district court and appeal judges really can deal with abusive litigation, then they should do so. This might involve acting tougher with vexatious plaintiffs and being more willing to award costs in appropriate cases. Maybe we need to see a bit more judicial activity here?
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