Highlights of this short video include:
- New USPTO procedures could be subject to severe abuse
- 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 concentrating on.
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 programme.
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 slipping badly.
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.