By Bryan K. Wheelock, Principal
On July 13, 2017, The Subcommittee on Courts, Intellectual Property and the Internet of the House Judiciary Committee held a hearing on The Impact of Bad Patents on American Businesses. Such a loaded topic should strike fear in the hearts of the many of us who work diligently to protect our clients’ legitimate inventions. The statement of former Chief Judge of the Federal Circuit Paul R. Michel, however, was a bright spot. As Judge Michel correctly observed, “[p]atents are neither bad nor good.”
Judge Michel extended his long history of service to the patent community, detailing a recent sharp decline in the value of U.S. patents which he attributes to, among other things, the failure of the three Branches of Government to adequately coordinate their interventions to improve performance of the system. Judge Michel calls out the USPTO for implementing AIA reviews with procedures that, in certain respects, departed from Congressional intent. He called out the Supreme Court for revolutionizing the law of patent eligibility, while providing wholly inadequate guidance for those who must apply the new standards. Finally he calls out Congress for focusing more on the relatively minor problem of frivolous assertion, rather than addressing the more significant issue of patent eligibility.
Judge Michel concludes that:
In view of all the developments of the past few years, to pile on still more patent “reform” at this juncture when the system is still reeling from the destabilizing and degrading effects of recent interventions by all three Branches seems inappropriate.
Hopefully, Congress will follow his very wise counsel.