Interview: Judge Paul Michel
Can you tell me briefly about the course of your career, and why you chose to become a judge?
In school years, I determined I wanted to become a public lawyer using law to advance public safety, health and welfare. Thomas Jefferson’s career was one model of such a career path.
I kept to such a path, serving for five decades in public positions, including twice as a public prosecutor, twice as a Senate counsel, twice as a Justice Department official and, finally, for 22 years as a judge on America’s IP court—the Court of Appeals for the Federal Circuit.
The long-term goal all along was to become a judge. My deep involvement in patent law spanned 33 consecutive years, from 1988 to today.
Before 1988, I was only tangentially involved [in patent law], for example with helping shepherd the 1982 act that created the court and with helping vet Judge Newman who was appointed in 1984 after being interviewed by Senator Spector and me.
Have you faced any barriers or challenges in your career, and how did you overcome or deal with them?
Because I was associated with elected officials, sometimes career progress was impeded when election losses curtailed my mentors’ time in office. Several sudden job changes became necessary, but each was successfully negotiated based on my reputation as a corruption prosecutor and manager of litigators and investigators.
What was the best part of your job? Any high points/particular successes?
Patent cases fascinated me as I watched up close the advance of cutting-edge technologies. Judicial colleagues were brilliant and inspiring, and were great and generous teachers.
One of my contributions to the development of patent law was to author the opinion of the court in Vitronics v Conceptronics, eliminating conflict and confusion on the proper method of construing claims, their scope of protection and individual words and phrases.
And what was the worst / least favourite part of your job? Any regrets?
Before I became devoted to patent law in 1988, upon appointment to the Federal Circuit, the high positions I held before the judgeship included Watergate, the Church Committee, Korea-gate and Counsel to a US Senator.
Every job was intense, difficult, pressured, covered in the press—and very satisfying. The only drawback was decades of rather low salaries, leaving me without assets normal for successful lawyers. A supportive spouse helped immensely.
What advice would you give to someone looking to follow a similar career path?
If possible, secure your finances first. If not, proceed anyway and just accept a very modest lifestyle.
What in your opinion are the biggest challenges facing the IP sector right now, both in your home country and globally?
The IP systems in the US, especially the patent system, are in disarray and seriously weakened by court decisions and legislation devaluing patents, making them harder to obtain, more expensive to enforce and easier to invalidate.
The near elimination of injunctive relief for owners who proved infringement further eroded patents’ utility to protect inventors and incentivise the funding they need.
Smaller innovators suffered most from the decade-long, massively financed propaganda campaign by a few mega firms in Silicon Valley and elsewhere to squelch potential competitors.
American global competitiveness, medical advances and national security are threatened. So are job creation and economic growth.
What key developments do you see emerging in IP in the coming years, locally or globally?
Internet technologies and platforms have revolutionised commerce in the US and globally. Governments everywhere struggle to control these behemoths. The IP regimes were meant to give newer, smaller enterprises a chance to succeed and compete on a level field with the giants. But the giants have subverted these systems with their lobbying and media blitz against “trolls", now actually a minor problem.
In your opinion, what cases in recent years are likely to have a long-term impact on the IP sector?
Google v Oracle made copyrights unenforceable in many contexts. Mayo and Alice made many vital new technologies, including medical diagnostics, ineligible for patenting. Ebay made injunctions rare here although routine in Europe and China.
Chinese courts attempt to set licence rates for the entire world to the advantage of Chinese companies.
Antitrust authorities in the US have been persuaded by the anti-IP forces to misuse their authority to stifle IP rights in cases like FTC v Qualcomm. All these imbalances need correction.
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