Paul Michel Reflects on Four Decades of Federal Circuit Impact and the Evolution of U.S. Patent Law

The Federal Circuit, established in 1982, was created to address inconsistencies and uncertainties in patent law that had plagued the United States for decades. Paul Michel, who served on the court from 1988 to 2010—including five years as Chief Judge—reflects on how the court fulfilled its congressional mandate to bring uniformity and strengthen patent rights.

Michel’s career trajectory to the Federal Circuit was unconventional. Initially engaged in public service roles unrelated to intellectual property, including work as an assistant Watergate special prosecutor and counsel for the Senate Select Committee on Intelligence, Michel eventually was appointed to the Federal Circuit in 1988. At that time, the court was still young and establishing its authority.

Before the Federal Circuit’s creation, patent law suffered from divergent rulings across regional circuits, fostering forum shopping and legal uncertainty. Additionally, an antitrust-driven skepticism toward patents prevailed, erroneously equating patent rights with monopolies despite the availability of alternative technologies and design-arounds. Michel emphasizes that the American patent system’s strength lies in its ability to disseminate technological advances and stimulate further innovation.

During the 1980s and 1990s, the Federal Circuit steadily enhanced patent protections, reversing a multi-decade decline in patent strength. Landmark rulings such as Markman v. Westview Instruments established that claim construction—a critical issue in patent litigation—is a matter for judges rather than juries, a decision unanimously upheld by the Supreme Court and instrumental in promoting legal uniformity.

The Federal Circuit’s jurisdiction also expanded to include trademark appeals from the U.S. Patent and Trademark Office, recognizing trademarks’ vital role in commerce. Design patents similarly became part of the court’s docket, with notable cases currently pending en banc.

The 1990s ushered in rapid technological innovation, particularly in computing and the Internet, which transformed communication and commerce. However, this period also saw the emergence of the “patent troll” narrative, coined in 2002 by Intel attorney Peter Detkin to describe non-practicing patent owners. Michel critiques this pejorative as misleading, noting that many significant innovators, including academic researchers, fall under this description.

Concurrently, federal agencies such as the Federal Trade Commission and the National Research Council issued reports critical of patent law, asserting that the Federal Circuit’s decisions hindered competition. Congressional hearings amplified these critiques, with some academics forming a persistent opposition to the court’s pro-patent rulings.

From 2006 onward, the Supreme Court increased its scrutiny of patent law, often curtailing patent rights. The 2006 eBay Inc. v. MercExchange decision limited the availability of injunctions in infringement cases, while the 2007 KSR International Co. v. Teleflex Inc. ruling raised the bar for patent obviousness, making it easier to invalidate existing patents. These decisions have had far-reaching effects, including increased uncertainty for patent holders and reduced enforcement remedies.

Michel notes that district courts and the U.S. Patent and Trademark Office broadly applied the KSR standard, significantly impacting patent validity assessments. The eBay decision’s influence grew over time, with permanent injunctions now typically reserved for direct competitors, resulting in a steep decline in injunctions granted despite numerous infringement verdicts annually.

Reflecting on these developments, Michel underscores the importance of revisiting patent law to better support innovation as the United States approaches its 250th anniversary. Pending legislation presents an opportunity to address current challenges and reinforce the nation’s commitment to fostering technological progress.

With over 35 years dedicated to intellectual property law, Paul Michel’s perspective offers valuable insights into the Federal Circuit’s evolution, the shifting judicial landscape, and the critical policy considerations necessary to sustain America’s innovation ecosystem.