PTAB Chief Judge Ruschke Must be Beyond Reproach

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.

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9 comments so far.

  • [Avatar for Night Writer]
    Night Writer
    November 30, 2017 08:37 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.

  • [Avatar for Anon]
    Anon
    November 29, 2017 07:20 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.”

  • [Avatar for Tim]
    Tim
    November 29, 2017 06:39 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.

  • [Avatar for The Time Is Now To Act]
    The Time Is Now To Act
    November 28, 2017 10:43 pm

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

  • [Avatar for B]
    B
    November 28, 2017 08:19 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.

  • [Avatar for Paul Morinville]
    Paul Morinville
    November 28, 2017 08:09 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.

  • [Avatar for Night Writer]
    Night Writer
    November 28, 2017 04:34 pm

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

  • [Avatar for Joachim Martillo]
    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#

  • [Avatar for Joachim Martillo]
    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.

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