Paul Michel (former Chief Judge, Court of Appeals for the Federal Circuit)
Marybeth Peters (former US Register of Copyrights)
Register Peters started off her talk discussing the biggest challenges in her job as Register of Copyrights. These included the following:
Next, she discussed the challenges in the future for copyright law. She commented that the challenges are:
Finally, Register Peters discussed some proposed solutions to some of the currently existing problems, including and noting that:
Judge Michel began by discussing the challenge he faced while sitting on the Federal Circuit. He said, "The problem of being on the court is that you don't have 1st Amendment rights." He stepped down because he figured he could do more good off the court than on – trying to educate members of Congress and their staffers.
Judge Michel then explained that he thought the key players who will be involved in trying to rebalance patent law are: (1) Congress, (2) Supreme Court; (3) PTO; (4) Federal Circuit; (5) White House; (6) mainstream media; (7) K-Street lobbyists.
Judge Michel commented on the pending patent reform legislation. He predicted that a patent reform bill will pass, even if it doesn't do much. The three most contentious issues, according to Judge Michel are: (1) first-to-file; (2) post-grant review; and (3) financing of the PTO (fee diversion from PTO to other government programs). Judge Michel believes first-to-file will be adopted, but the scope of the grace period may be changed. With respect to post-grant review, Judge Michel thought one of the two procedures will pass, but what the thresholds should be is an open question, although will probably be more modest than what was proposed in the Senate. Finally, with respect to fee diversion, Judge Michel thought the House will not ban diversion.
Judge Michel concluded with a couple thoughts on Microsoft v. I4i and how the Federal Circuit will change. He thinks the Supreme Court will reverse the Federal Circuit and apply a preponderance of the evidence standard across the board (i.e. get rid of the clear and convincing standard altogether).
With respect to changes to the Federal Circuit, Judge Michel predicted that there will be three additional slots opening on the court in the next 18 months. The debate will be should the nominees be someone with an interest in patent law or more of a generalist. The White House will obviously play a major role in the development of the court.