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Courts aren’t equipped to tinker with the patent system, Judge Paul Michel of the U.S. Court of Appeals for the Federal Circuit said at a conference Friday at the University of California, Berkeley’s Boalt Hall School of Law. “We’re backward-looking, interpretive,” Michel said of his fellow judges. “How do we know what motivates a venture capitalist to put up money for a new drug?” Congress also is limited in its ability to modify the patent system, he said. “Every time Congress reforms patent law it has to issue follow-on law for the next four or five years,” at which time the next round of change is being advocated, Michel said. “It’s always chasing after a rabbit like hounds at the track.” The judge, whose court handles all appeals in patent cases, proposed establishing a Law Reform Commission, similar to one in Australia, that would have the task of revising patent law. Such an organization, he said, should include members of academia, industry and the legal community. Michel gave the keynote speech at a conference on patent system reform, sponsored by the Berkeley Center for Law and Technology at Boalt Hall. The two-day meeting included presentation and discussion of a variety of proposals to revise the patent system, from policies relating to the patenting of industry standards to the formation of specialized patent courts. Michel sharply criticized attorneys for failing to provide qualitative data in their briefs to the court. “I cannot remember a case where meaningful, economic or empirical data is cited,” Michel said. “We get our own words in numerable prior decisions thrown back at us.” He particularly blasted the Federal Circuit’s decision in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 00-1543, which sharply restricted the ability of patent holders to file patent infringement suits under the so-called “doctrine of equivalents.” The doctrine holds that if a product is insubstantially different from a patented item it is considered to be infringing. The Federal Circuit issued an en banc decision in Festo in November 2000 and the U.S. Supreme Court heard oral arguments in the case in January. Michel, who dissented in the ruling, quoted the Federal Circuit’s finding that its “flexible bar approach” had proved to be unworkable. “There are no statistics, no cites, no figures” given to support this conclusion, Michel said. “We are operating on so little data and offhand assertions by lawyers and judges with so little to back it up,” Michel said. The court’s workload has nearly doubled since Michel joined the Federal Circuit 14 years ago. The number of pending case at that time was 217 and is now almost 400. In other comment, Michel disagreed with an article in the Berkeley Technology Law Journal that said the court’s reversal rate on claim constructions is 50 percent. Michel said the court calculated a rate of 22 percent to 26 percent based on 3 1/2 years of cases.

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