Chief Judge Michel: State of the Court

Chief Judge Paul Michel will be retiring from the bench later this month after more than twenty-two years on the bench and five as the chief judge.  He recently offered his annual “state of the court” address at the court’s annual judicial conference. [Read Judge Michel’s remarks].

As Chief, Judge Michel has taken a specific interest in ensuring that the court runs efficiently and quickly. His remarks:

By every measure our decisions continue to be issued more rapidly. As a result, our inventory of pending appeals has dropped from over 1,400 just a few years ago to only 819 as of April 30. Indeed, as of October 1, 2009 it was 897, so the reductions continue.

One benefit is that we hear cases more quickly. In Fiscal year 2006, for example, only 49% of ready cases could be scheduled for argument without delay. By last year, the number was 84%. This year it will likely rise even further.

Another metric we watch is the percentage of appeals decided within 90 days of argument. This number has ranged recently from 75 to 83%. Likely it will reach 85% this year.

Judge Michel also briefly discussed the pending en banc cases:

  • Last October we agreed to rehear en banc Princo v. ITC, involving a patent misuse defense based on a patent pool licensing agreement. Argument was held in March. [This case was argued by Edward DuMont. DuMont has been nominated to fill Judge Michel’s place on the bench]
  • In February, we granted rehearing en banc in Hyatt v. Kappos, asking the parties to brief any limitations on admissibility of evidence in § 145 patenting actions in district court. Argument is scheduled for July 8.
  • In March, we agreed to rehear Slattery v. United States, a Winstar case, asking whether the FDIC is a non-appropriated funds instrumentality and how the answer to that affects the jurisdiction of the Court of Federal Claims.
  • In April we granted rehearing en banc in Therasense v. Becton, Dickinson, in which we will reconsider the standards for determining inequitable conduct. 
  • This month, we granted rehearing in TiVo v. Echostar, concerning when contempt proceedings are appropriate as opposed to a new infringement trial on a product that has been altered after the original was found to infringe.
  • And of course all eyes are on the impending decision in In Re Bilski, concerning the test for patent eligibility.

Although stepping-down from the bench, Chief Judge Michel is “not retiring, but merely changing mission.” He reports that he expects to play a greater role for campaigning for stronger support the courts and USPTO and may also spend some time as a mediator.

PatentLawPic989

35 thoughts on “Chief Judge Michel: State of the Court

  1. Who will soon be out of a job…

    He was the rebound guy after a really nasty breakup. It was never a long-term relationship. There was no way short of a miracle that he was ever going to get two terms.

  2. “Just as it is a “vaild question” as to whether Kappos is a legimate director of the USPTO, given that he was appointed by a Muslim born in Kenya.”

    Who will soon be out of a job… the Kenyan that is.

  3. Mainly only hot chics.

    I thought I heard someone say “Like Malcolm’s mom”, but maybe I was mistaken…

  4. “And, it is a vaild question of how to interpret the Constitution. “

    Just as it is a “vaild question” as to whether Kappos is a legimate director of the USPTO, given that he was appointed by a Muslim born in Kenya.

    Got it.

  5. “6, I don’t believe that you care what anyone thinks of you”

    Mainly only hot chics.

    “And, it is a vaild question of how to interpret the Constitution. ”

    LO… well you know where this is going.

  6. >>I wouldn’t admit to holding that belief for >>fear of lols from mah peers.

    6, I don’t believe that you care what anyone thinks of you. And, it is a vaild question of how to interpret the Constitution.

  7. That’s probably not a bad characterzation of what I did. Kicked up a bunch of dust, but refused to help you.

  8. “I qualify as someone that said that it is a valid question to raise as to whether or not the Constitution should be interpreted to mean that the Congress has a proactive obligation or not.”

    That is just about as bad as the sanctionable argument :( Personally I wouldn’t admit to holding that belief for fear of lols from mah peers.

  9. And by the way, NWPA, it’s certainly not required that everyone chime in to rebut a specious argument everytime it’s raised lest they be considered a proponent of that specious argument.

    In this instance, as I recall, you (and a couple others) were commenting right alongside AI, in real time, kicking up dust left and right but refusing to address AI’s baloney even after being expressly invited to do so. I found it odd, at the time.

  10. qualify as someone that said that it is a valid question to raise as to whether or not the Constitution should be interpreted to mean that the Congress has a proactive obligation or not.

    I’m not sure what you are trying to say, but it doesn’t change the facts about your previous cheerleading and eagerness to slam those of us who were correcting AI’s misunderstanding and misrepresentations.

    I’m sure you appreciate that the presentation of AI-esque patent teabugger arguments has been deemed sanctionable by the CAFC under Rule 11. Not that this will stop the usual commenters from bringing up the same tired canards again and again.

  11. >> I think you qualify as one of those >>cheerleading commenters, NWPA.

    I qualify as someone that said that it is a valid question to raise as to whether or not the Constitution should be interpreted to mean that the Congress has a proactive obligation or not.

    That is about all I qualify for. You do love to try and put people in categories to diminish them. Sorry, life isn’t that simple.

  12. I know of only one person on this blog that has spent any significant amount of time advancing the argument that the Constitution provides a right to a patent for an invention.

    There were a number of cheerleading commenters who never once corrected this person, but who did attack those who repeatedly corrected this person. I think you qualify as one of those cheerleading commenters, NWPA.

  13. MM: please don’t try to lump everyone that disagrees with your very, very narrow views into a single category. I know of only one person on this blog that has spent any significant amount of time advancing the argument that the Constitution provides a right to a patent for an invention.

    Cercopithecinae.

  14. ….an argument for establishing new law ignores the fact that the argument for creating new law must be non-frivolous. There is no basis for inferring that Article I, Section 8, Clause 8 provides rights to inventors without congressional action, and we long ago made clear, in the context of the Copyright Clause, that it does not. In In re Cooper, our predecessor court rejected the argument that the Clause itself required trademark protection for book titles. 254 F.2d 611, 616 (C.C.P.A. 1958). The court explained that “Article I, Section 8, eighth clause, of the Constitution . . . does no more than grant power to Congress to secure certain rights to authors and inventors insofar as it elects to do so. ….” Id. at 616-17.

    No shxt, Sherlock. AI and his fellow patent teabagggers can continue to sxck it.

  15. However, I doubt that our friends will respect the authority of the CAFC or any other entity that nay says them on this issue.

    Every real American knows that an appeal lies as of right from the Supreme Court to the Founding Fathers.

  16. So, Ping, you can hereafter quote that CAFC case at our friends when they claim they have a Constitutional right to a patent. Here, I’ll help you.

    “There is no basis for inferring that Article I, Section 8, Clause 8 provides rights to inventors without congressional action, and we long ago made clear, in the context of the Copyright Clause, that it does not. In In re Cooper, our predecessor court rejected the argument that
    the Clause itself required trademark protection for book titles. 254 F.2d 611, 616 (C.C.P.A. 1958). The court explained that “Article I, Section 8, eighth clause, of the Constitution . . . does no more than grant power to Congress to secure certain rights to authors and inventors insofar as it elects to do so. The cited clause grants no rights to authors and has nothing to do with the registration of trademarks.” Id. at 616-17.

    What’s more, the CAFC held that arguing otherwise is a “frivoluous” argument and therefore sanctionable.

    However, I doubt that our friends will respect the authority of the CAFC or any other entity that nay says them on this issue.

  17. >> we had to refile with fee every time we got a >>rejection

    We do have to pay a fee every time we get a good rejection. You get one non-final and then a final and that’s it. You pay after that. The only time you get this hear the same arguments over and over is when the examiner has made a bad rejection.

    The fed. cir. has to hear your arguments over and over when they get it wrong and the supreme court remands.

  18. Sounds like the FedCir should give the PTO a lesson in efficiency

    Unlike the PTO, when the Circuit dismisses your arguments it doesn’t have to listen to them again in a few months. And again and again, if you pay a small fee.

  19. “Sounds like the FedCir should give the PTO a lesson in efficiency”

    Here’s the lesson: hire 3-4 law clerks for every APJ on the Board and you’ll be alot more efficient.

  20. Keep in mind that one does not simply walk into the public arena, or congress.

    And also Chief Judge, if by my life or death I can protect you, I will. You have my sword…

  21. The scaling of the graph is a little misleading. Over the 4 years from 05 to 09, the improvement in disposition time is around 10%, while the last year has shown an improvement of the remaining 7 percent or so. This information is meaningless however without a corresponding graph showing the number of cases docketed.

  22. Hail, Caesar! Hey, did you see that CJ Michel retires next week? He’s out. Whether he thinks the world of me, or that I’m a loser who takes online pot shots behind an alias makes no difference.

  23. I had a chance to chat with CJ Michel at the Tayloe House reception, the evening before the Judicial Conference. I told him how much I appreciated his thanks during an oral argument for taking on a veteran’s case pro bono; it was a highlight of my career, I told him. “There are lots more to come,” he responded.

    Thanks so much, your honor. You’re all class.

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