PTAB Chief Judge Ruschke Must be Beyond Reproach

By Aaric Eisenstein
November 28, 2017

Chief Judge Ruschke

I was dismayed recently when I received my invitation from Unified Patents to their conference where the keynote speaker was David Ruschke, Chief Judge for the Patent Trial and Appeal Board.

In what world would a Chief Judge be so blinkered that he’d think it a good idea to speak at such a conference? But wait, you say, don’t federal and state judges appear in front of various interest groups all the time? Sure they do, so let’s draw out the important distinction.

Supreme Court justices routinely speak at think tanks like the Federalist Society, and other judges might appear before trade groups like a chamber of commerce. These groups, and others like them, may even at times appear as parties in front of a judge. But the critical distinction is that these parties have the bulk of their own regular business operations that are also outside the judges’ purview.

In contrast, the hearing rooms overseen by Judge Ruschke and his corps of Administrative Patent Judges are the only places where Unified Patents ever does business. Unified Patents did not even exist before the America Invents Act became law nor before the PTAB began operations.

Judge Ruschke surely should have realized that Unified Patents makes money exclusively by arguing in front of Judge Ruschke’s team. Unlike other conference hosts, Unified Patents operates exclusively in front of the PTAB and solicits members on that basis. Put bluntly: if SCOTUS finds for Oil States and eliminates IPRs, doesn’t Unified Patents raison d’être evaporate?

This kissing cousin relationship starts to look even worse in light of the PTAB’s current efforts to address “gang tackling”, repeated IPR attacks on the same patent/owner. After patent owners extensively criticized this practice, Judge Ruschke, on his own, behind closed doors, without public input/comment, is formulating rules for serial challenges. The PTAB of course, seemingly relying on the jurisprudence handed down by Magoo, J., has previously held that Unified Patents is not a real party in interest with its subscribers – who pay it for no reason other than filing IPRs. So I have to ask, “Is the period when Judge Ruschke is writing rules regarding gang tackling really the best time for him to attend a conference put on by one of the leading gang tacklers?”

Obviously the definitive way to resolve this apparent conflict of interest would be to refer back to the PTAB’s ethics rules for judges. Great idea – except that the PTAB judges don’t have a policy for defining and avoiding conflicts of interest. Given several similar documented instances of apparent, let’s just say “questionable judgement,” presumably the new PTO Director can address this.

Maybe what’s needed is for the appropriate people at the PTO to take a look at Chief Judge Ruschke’s seemingly conflicted relationship. No one wants too-close-for-comfort ties impugning the Board’s independence and reputation for fair judgements. Federal Courts and the PTO have built credibility over generations. The PTAB must be similarly committed to upholding fairness to all parties that is the foundation of American justice. A little management coaching for the Chief Judge to avoid even the impression of impropriety that comes from inadvertently bestowing his imprimatur could restore that vital confidence.

The Author

Aaric Eisenstein

Aaric Eisenstein is Vice President of PMC. Mr. Eisenstein focuses on patent strategy and licensing. Mr. Eisenstein, who joined the company in 2012, has extensive experience in early-stage companies. Most recently, he founded Publishing Revenues, a sales and marketing consultancy for high-profile authors and media figures. Other technology experience includes positions with LibreDigital and Stratfor, where he was SVP of Publishing and Chief Innovation Officer. Mr. Eisenstein received his BA in Political Economy from Williams College and an MBA from the University of Texas at Austin.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 9 Comments comments. Join the discussion.

  1. Joachim Martillo November 28, 2017 10:54 am

    I did a double take on this one and made sure the author had not read Unitary Patent as United Patents. I consider United Patents to represent organized patent claim jumpers and IP poachers.

    It’s analogous to a situation wherein a senior federal judge speaks before a conference of highly mob-connected individuals even if none have yet been convicted.

    Because I come from Massachusetts, I am used to the relationship between Whitey and Billy Bulger, but I have to wonder why the FBI and the SEC are not crawling all over Ruschke, the PTAB, and the USPTO in a search for any form of direct or indirect compensation by the poachers to Ruschke or associates.

  2. Joachim Martillo November 28, 2017 11:02 am

    BTW, if you wish to see an online description of the event. Here is a URL.

    https://www.eventbrite.com/e/corporate-intellectual-property-strategy-conference-tickets-36617596216#

  3. Night Writer November 28, 2017 4:34 pm

    I’d like to see how Lee is reaping the Google bucks from her years as director.

  4. Paul Morinville November 28, 2017 8:09 pm

    Ruschke presented at a “fireside chat” at this event. That is exactly what they called it – a fireside chat.

    But that should not surprise anyone. After all, Ruschke presided over burning the patent system to the ground and watched as inventors burned their patents on his front door step. Somehow, a fireside chat with Ruschke seems appropriate.

  5. B November 28, 2017 8:19 pm

    Hey, Paul. FYI, I’m filing the RecogniCorp amicus tomorrow. FWIW, the PTAB’s “chief judge” is an idiot, and I say this from first-hand experience with his sorry self.

  6. The Time Is Now To Act November 28, 2017 10:43 pm

    When we say, “judge”, we usually mean something else.

  7. Tim November 29, 2017 6:39 am

    “Lee enjoying Google $$$”. Also, how about those other two judges, Mayer & Wallach” at the Appela’s Court, who tossed the Vringo “shutout” Vringo vs IP Internet! 12 jurors in Judge Jackson’s Norfolk Court slammed Google, AOL, Gannett & Target for infringement on all counts: 14 to 0, a no hitter game! Only to have Google take it to the Appeals Ct for Mayer & Wallace to “toss the case”, while the former head of the USPTO, Judge Chen (only judge with a degree in computer engineering) highly dissented. Case went to Supreme Ct with Attorney David Buies. The court wouldn’t even hear the case. United States of Obama/Google.

  8. Anon November 29, 2017 7:20 am

    Obviously the definitive way to resolve this apparent conflict of interest would be to refer back to the PTAB’s ethics rules for judges. Great idea – except that the PTAB judges don’t have a policy for defining and avoiding conflicts of interest…
    presumably the new PTO Director can address this.

    This was previously addressed and noted that the new PTO Director can NOT address this, as all executive agencies operated under a single omnibus “ethics directive.”

  9. Night Writer November 30, 2017 8:37 am

    @7 Tim: the reality is that many of the judges on the CAFC are Google judges. They were selected by Google for being anti-patent judicial activist.

Post a Comment

Respectfully add to the discussion.

Name *
Email *
Website