Highlights of this short video include:
- New USPTO procedures could be subject to severe
- Congress should fill judicial vacancies
- Pessimism regarding appropriations in the short-term
- Patent Office like a bridge that is rusting
- Long run, we’ll get it right – just
as Churchill said
Judge Michel, who was formerly Chief Judge of the Court of
Appeals for the Federal Circuit, starts the second part of this
interview talking about the new procedures before the USPTO. It
was recorded at the Managing IP US
Patent Forum in Washington DC on March 19. The
first part of the interview is also available.
I think that they're a good addition to the system because
although they're not cheap, they're far less expensive than a
full scale District Court litigation so I think it's a
perfectly good way to test patents; I'm not against it.
What concerns me is that I think, like litigation itself, it
will be subject to severe abuse - and it will be abused. So
patents will be attacked over and over again by different
parties using any one of the four procedures that now are
available back in the Patent Office.
In terms of what could Congress have done more
constructively? it could have filled 100 judicial vacancies in
the District Court; it could have increased the number of
judgeships which the judiciary has been asking for for over 20
years and which Congress has refused to do so the mismatch
between the workload of judges and the number of judges is
severe and has grown worse over time. Cases, filings go up;
complexity goes up. The available resources get further and
further out of line - that's what Congress should be
The Patent Office is badly understaffed. So are the other
agencies I mentioned and the results are everybody's too slow,
too rushed, too inaccurate, too unpredictable, too expensive.
Solution: mainly resources. Well it's much easier for Congress
to change the law and in that way, try to curry favour with
powerful industry groups than it is to provide appropriations
because if you add money to the courts under current
circumstances, you have to take money away from some other
In the short run, I'm quite pessimistic about Congress doing
what would be needed to have a really well-functioning patent
system that would create millions of new jobs the country
desperately needs right away and to regain technological and
manufacturing leadership on a global basis which has been
The incentives needed to get the investment required to have
ample research and development and commercialization of new
products and development of new technologies
aren’t there; they aren’t adequate.
That's what this country needs more than anything else if we're
going to regain global competitiveness, technological
leadership, prosperity and all that comes with that.
The Patent Office is part of the invisible infrastructure of
this country; it's not like a bridge; you can't see it rusting
but when it doesn't work well, it's just as dangerous as the
bridge and the interstate highway near Minneapolis that fell
into the river killing a bunch of people and wrecking commerce
in that region for quite a long time.
That's what the country faces; we need to make the
investments that are required for a good future. In the short
run, I'm very pessimistic; longer run, I'm highly confident
we'll get it right.
Churchill had a good way of describing American behaviour,
and since your magazine is headquartered in London, maybe it's
especially appropriate: he said something like this (this was
of course on the eve of World War Two): "Now, you can always
count on the Americans to do the right thing … after
they've tried everything else…" So, I feel quite happy
with the reception and the interchange; everybody has a lot to
learn from everybody else … and we are learning from one
another, more than ever before.