Retired US judges slam AIA

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Retired US judges slam AIA

Three retired senior judges have criticised the America Invents Act as a recipe for more litigation and greater confusion about the way the patent system works

The three headlined yesterday’s AIPLA Annual Meeting session, “Patent Litigation Under the AIA.” The session was so packed that the roughly 1,000 attendees overflowed into the hallways surrounding the room.

The panel included former Chief Judge of the U.S. Court of Appeals for the Federal Circuit Paul Michel, former Administrative Patent Law Judge on the USPTO’s Board of Patent Appeals and Interferences, Judge Nancy Linck, and Judge Joseph Farnan, who retired from the U.S. District Court for the District of Delaware.

All three judges were frank in their criticism of the America Invents Act, which Farnan said includes “eye wash, feel-good” remedies for the courts. “This Act is a lot about reining in certain types of patentees, but it doesn’t take a broad brush to reforming the system,” said Farnan. “In district courts, it’s going to be a lot more litigation and confusion,” he added.

Linck questioned why the U.S. decided to adopt a post grant opposition system, which has been an aspect of the systems of many other countries. Although in favor of harmonization, Linck asked: “Why does the U.S. want to pattern its system after other countries when ours is the strongest patent system in the world? Other countries should be lining up with us.”

Michel blamed Congress for the failures of the AIA. He said that while there are some positive provisions in the Act, the bad outweighs the good. He was particularly critical of the post grant review system. “The idea that we can all be confident these proceedings will be done within a year’s time is an illusion,” said Michel. He said that the AIA is “another example of over-intervention by Congress.”

The Federal Circuit’s current Chief Judge, Randall Rader, has expressed concerns about the potential effects of increased volume of cases in light of the AIA on his court as well, particularly since there are currently two vacancies.

Download the AIPLA Daily Report, published by Managing IP from Washington, DC from our conference newspapers page.

more from across site and SHARED ros bottom lb

More from across our site

Sources say the judge could return to a disputes or mediation-focussed role, though others have questioned whether the Texas court will remain a litigation hotspot in his absence
Sheppard, which has hired 14 IP partners in the last 12 months, has cited client demand for expert counsel in SEP, ITC, and district court disputes
Tingxi Huo joins our ‘Five minutes with’ series to discuss boosting the value of clients’ IP and the importance of reflection
Hefty legal teams assembled for a three-day hearing in what was the court’s first foray into SEPs since Unwired Planet v Huawei
IP firm's new base will be located inside the tallest office space in the UK's ‘second city’
Practitioners at four firms across Asia and Europe share the do’s and don’ts of mindful networking ahead of the INTA Annual Meeting
Brand Action explains why the IP community can be a force for good in the world as thousands of professionals prepare to head to London for INTA’s Annual Meeting
The firm, which has also hired a senior trademark leader to lead operations in the region, believes greater China to be one of the most important IP jurisdictions
Attorneys at Gibson Dunn share why plaintiffs’ growing reliance on DMCA anti-circumvention claims in AI scraping cases exposes a critical vulnerability
Tom Carver, who spent the last 18 months sailing the Mediterranean, tells Managing IP why he’s ready to return to land
Gift this article