Intellectual Property Law

Judge Michel Announces Resignation, Lays it On the Line (and promises more to follow)

By Michael Kivi

CAFC Chief Judge Paul Michel doesn’t pull punches when he states his views on problems with the U.S. patent system and the federal courts more generally, and he didn’t pull too many when he announced his upcoming retirement from the CAFC on on November 20, 2009.  A few notable quotes from his speech:

On interlocutory appeals of claim construction rulings to the CAFC: A provision in a Senate patent reform bill would allow interlocutory appeals of Markman rulings.  Predictably, Judge Michel doesn’t like the idea.  He states that interlocutory appeals would double or triple the case load on the CAFC, and the court “can’t handle it.”

The median time to adjudicate a patent case before the CAFC?  One year “from filing, to the opinion going up on the Internet.”  Interlocutory appeals would double this to two years.

And, interlocutory appeals are unnecessary as a practical matter, he argues.  Some interesting statistics from Judge Michel:  “About 3,000 [patent cases] are filed a year, about 2,700 settled spontaneously. Of the remaining 300, about 200 are resolved on summary judgment, almost always based on claim construction. . . . The remaining 100 go to trial. . . . there almost are never second trials. There usually aren?t even first trials.”

On Upcoming Retirements from the CAFC: The CAFC has 11 active judges and five senior judges. . . .  [t]he . . .  little secret here is there are five other judges of our active 11 who could retire tomorrow, or take senior status. . . . [p]otentially five other seats at any time could become vacant.  A year hence . . . two more will be eligible for that conversion of status. So there could be seven more vacancies within a year of tonight.”

On Diversity: “We don?t have and have never had an African-American judge on our Court. Nor do we have an Asian-American heritage judge on our Court. We do have three women out of 16, but three women out of 16 is less than a quarter ? it?s half the population.”

As I’ve noted before, Massachusetts U.S. District Judge Patti Saris has been mentioned as a strong candidate for a CAFC seat.

And of course:

Full post as published by Mass Law Blog on November 25, 2009 (boomark / email).