Are patent regulators too patent friendly?

It's easy to criticize Johnson's nomination to the patent office. He opposed the recently-killed patent reform bill. He worked in an industry (pharmaceuticals) that disproportionately benefited from patents. And the tech community is against him. I mentioned these points in my last blog post.

However, there are at often at least two sides to a story. I want to discuss the other perspective, and include my own opinion.

Gene Quinn of IPWatchdog writes:

Johnson is extraordinarily qualified, he is willing to take the position, he has seen the patent system from virtually all vantage points...It seems that Johnson’s major flaw may be that he strongly supports the patent system, which is a very sad commentary. In fact, there are some starting to believe that the only candidate that may be acceptable to certain political forces is one who opposes the patent system on a fundamental level. Of course, such a candidate would be unacceptable to a great many other powerful industry interests, so this could mean that the USPTO will indefinitely be without a politically appointed and confirmed leader, at least unless the White House is willing to step up and make a nomination.

Once again, this points out the dilemma that I've discussed in my last two blog posts: how to reconcile the opposing interests of different industries, for example tech and pharma.

Quinn goes on to point out that Johnson was a proponent of previous patent reform, e.g., the American Invents Act (AIA). I would counter that the AIA was a different kind of reform. As discussed in class, it replaced first-to-invent with first-to-file, in line with other countries, and established micro-entity status. It would not prevent or mitigate patent troll abuse.

Quinn also interviews Judge Paul Michel, former Chief Judge of the Court of Appeals for the Federal Circuit (CAFC). Regarding Johnson, Judge Michel says:

I can’t think of anybody better qualified by experience. He was an extraordinarily effective, skillful patent litigator for 20 years. And now he’s been in industry for almost as long. And he has extensive scientific training. He has proven management skills in a huge organization. J&J [Johnson & Johnson, Johnson's employer] isn’t just a pharmaceutical company, it’s dozens of companies in many different industries. Highly diversified. He’s an ideal choice by experience, by intellect, by temperament.

Similarly, in an older post, Quinn cites praise from other high-ranking public officials, including a former Acting Director of the USPTO and Commissioner for Patents.

I think this raises another dilemma for the patent system. From a technical standpoint, Johnson's experience would make him well-qualified. But is an "industry insider" perhaps too biased? Is this a problem with many patent lawyers who are now regulating patents, not just the USPTO but also the Federal Circuit?

In 2012, At a Princeton University conference about the AIA, the same former Chief Judge Michel said:

If software is less dependent on patents, fine then. Let software use patents less as they choose. If other industries are terribly dependent on patents, then let's not wreck the system just because software people are unhappy.

But, software developers can't choose to opt out of the patent system!

Moreover, Michel directly contributed to the present debate with software patents. He was Chief Judge of the Federal Circuit from 1988 to 2010. This includes the period in which the Federal Circuit opened the floodgates to software patents in the first place, most notably with State Street (1998).

Timothy Lee writes:

Rader [current Chief Judge of the Federal Circuit] and Michel's perspectives are likely skewed by the fact they spent their time on the bench surrounded by patent lawyers (who by definition work with firms that have the resources to hire patent attorneys).