During his luncheon address at the Hotel Del Coronado on Tuesday, Michel said that "change is in the air with respect to IP law" and told attendees: "You need the Court's help and the Court needs your help" to improve the US patent system.
He highlighted four key areas for taking action: Congress, the USPTO, the Federal Circuit and the new US presidential administration.
"Whoever wins [the upcoming US presidential election], there will presumably be a new director in the USPTO," said Michel, charging the audience with taking a lead role in educating and informing the new PTO staff. "I'm very hopeful that all of you in this room will participate actively, vigorously and boldly," he said.
Michel also referenced an impending new version of the patent reform bill, which was introduced by Senator Jon Kyl of Arizona today (check back with Managing IP for details).
"We need to help the Senate move forward so we can have change that's positive. You have a key role here, because no one knows more about the system than you."
The chief judge noted the "startling" absence of private practitioners from the reform debates, and encouraged them, as well as smaller companies, to make their views known to Congress.
As to taking action in his own Court, Michel reminded the audience that many of the Federal Circuit judges will be stepping down soon, and said that it would be helpful if a new administration could appoint judges with IP experience - specifically, district judges who have tried IP cases, patent litigators or corporate chief IP counsel - to take their place.
In an appeal that many attendees found somewhat surprising, Michel also asked practitioners to make better use of the Court's en banc system: "The Federal Circuit's en banc process is hugely underutilised," said the chief judge.
Alluding to the recent en banc hearing held in In re Bilski, which could change the scope of patentable subject matter in the US, Michel added: "I think it's shocking that it took 10 years before the State Street decision was ever revisited. Why [did it take that long]? Because no one had ever asked us to before."
Michel said he found it "interesting" that "one of the most important patent cases of the decade, and maybe the century" (KSR v Teleflex), somehow bypassed the en banc process and further suggested that someone ask the Court to examine the ambiguities that have emerged from district court interpretations of the eBay v MercExchange decision.
"We've shown a lot of willingness to go en banc, but we can't do it on our own," said the judge.
In response to an audience member's question regarding whether the Supreme Court has been trying to rein in the Federal Circuit lately, Michel responded: "If anyone thinks the Supreme Court can solve all the problems in patent law, that's just not realistic. 90% of the changes will have to come from the Federal Circuit - that's why I'm so concerned about the en banc process."
