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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.

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