AUTM Advocacy Update

Fighting for Strong Patent Rights

By Mike Waring
August 12, 2020
For more than three decades, former Federal Judge Paul Redmond Michel has worked on intellectual property and patent-related cases and policy. He joined the Federal Circuit in 1988 and served until 2010, the last six years as Chief Judge. During that time, he worked on literally dozens and dozens of patent cases and has taken that background with him to continue his crusade for strong patents as a consultant.

Judge Michel was scheduled to be the Fireside Chat speaker at the AUTM 2020 Annual Meeting in San Diego, which was cancelled in the wake of  the COVID-19 pandemic. But his strong activism on patent issues continues. And his words act as a cautionary tale to all who see the American patent system as the linchpin to our nation’s economic future. 

In a recent blog post, Michel focused his attention on the major challenge facing the American patent system: the inability of the American courts to fairly and accurately define what is patent eligible, for starters. 

He spoke about the decision in Mayo v. Prometheus, in which the Supreme Court denied Mayo from creating certain diagnostic tests, saying the discoveries upon which they were found were ineligible to be patented because they are based only on natural laws.

"The law of patent eligibility has been a hopeless mess ever since the Mayo decision upended three decades of stable and predictable law,” said Michel. “To me, all the decisions since Mayo have struggled to create sound policy and consistent and certain results but, instead, only compounded the chaos. Year-by-year, more complexity was added as new standards and ever more obscure notions multiplied.”

Michel says the trend has only continued to make patent eligibility even harder to define.

“The end result is that few lawyers or judges can predict the eligibility outcome in vast numbers of instances,” he said. “Patents therefore look too unreliable to investors and others. I myself cannot discern the contours of the confusing and intersecting doctrines, nor predict outcomes in particular cases with any confidence. Pity the legion of others actors in the world of commerce and finance.”

Michel and others in the patent community, which includes higher ed, have been valiant in their efforts to focus Congress on undoing many of the consequences of these bad court decisions. Yet despite his and others’ efforts, things have not moved forward on Capitol Hill. But he continues to make the case for serious reforms that will allow American innovation to move forward.

“Today, numerous inventions previously eligible are now ineligible,” Michel says. “And with the doctrinal creep continuing, more soon may be. Further, thousands of inventions declared ineligible here have been ruled eligible in all 27 European nations and many Asian jurisdictions, including China.”

While there is little chance of action by this Congress, Michel says he hopes the groundwork has been laid to see legislation in the future. With Michel and others advocating strongly for patents, one can only hope the future will be brighter for American entrepreneurs. We thank Judge Michel for his leadership.