A Judgment on U.S. Patent Reform

A few weeks ago, the Honourable Paul Michel sat down for an interview with Professor Doug Lichtman from UCLA School of Law. Judge Michel is the current Chief Circuit Judge for the United States Court of Appeals for the Federal Circuit, and in that capacity he has much experience dealing with patent litigation cases. Much of the interview focuses on questions of reform within the U.S. patent system, from prosecution to litigation. Though he has overseen considerable change during his tenure in the court, Judge Michel believes that much more can and still needs to be accomplished.

During the beginning of the interview, Judge Michel states that the “patent office is the place to start”, with respect to reform. Mentioning horrendous delays, with an average of about 3.5 years, he believes that the patent office should first of all get more financial support. Citing high turnover rates and a low level of experience for a significant contingent of patent officers, he believes that part of the problem is that too many poorly written patents are being let through.

For the purposes of alleviating the toll on the courts, as well as reducing the time that companies remain in limbo while awaiting the outcome of a litigation case, Professor Lichtman brings up the idea of having post-grant reviews that solely focus on a small number of patents that are deemed to be highly impactful commercially. Though Judge Michel believes this to be a viable option, he says that this would not be enough. Inevitably, patent litigation cases will be brought to courts, where the law would need to be applied and clarified. Patent cases do not come up in a specific trial court that often, relatively speaking, so it may be quite difficult for a trial judge to render a properly spelled-out decision on matters that are novel to him or her.

Professor Lichtman raises the fact that the U.S. International Trade Commission has specialized patent judges, and asks whether the courts can adopt this as well. Primarily due to the unlikelihood of finding judges that would be willing to deal with only patents all the time, Judge Michel does not like this idea. Even the possibility of specialized district courts is not very appealing to him, as he worries about the feasibility of reaching an equal and fair workload for all judges, and the problems faced when there are pending cases during judge turnover. Rather he suggests that it might be more reasonable to require that patent infringement cases be tried in 1 of 15 specific districts instead of all 94.

Judge Michel admits that “patent doctrine is difficult, even for experienced judges”. Though he agrees with some of the criticisms of the Supreme Court with respect to their decision in eBay v. MercExchange, namely that they were too vague and indefinite, he realizes that they should not set out hard rules because they do not have enough experience with patent cases. This runs counter to Professor Lichtman’s point that the Supreme Court should have even gone so far as to give potential decisions to imaginary fact patterns, in order to provide clarification of the law. Judge Michel realizes that bright-line rules may allow for more predictability and certainty, and so allow business leaders to settle disputes upfront, but he believes that this is not worth the sacrifice of fairness that would follow. He says that a similar trade-off can occur with the speed of adjudication and the accuracy of the decision.

Ultimately, Judge Michel believes that the courts, congress, and the patent office should coordinate their reform efforts, and must understand the strengths and weaknesses of each part of the system. He also reminds Lichtman that the court is limited to decide on the specific issues raised by the parties in litigation proceedings, so that some parts of patent law may remain very underdeveloped without statutory revisions. There were also quite a few other related issues discussed in the interview. Since it is often the case that academics lead most policy debates, it was quite interesting to hear a perspective from the bench. An audio presentation of excerpts from the interview can be found here.