Posts Tagged: "FOIA"

Does Patent Quality Assurance (PQA) have a relationship with Intel? That is fast becoming the question du jour relating to the saga over the VLSI patents, to which Intel is on the hook for over $2 billion after losing a patent infringement action in district court. The factual predicate for the belief that there may be some relationship between PQA and Intel stems from the filing of an inter partes review (IPR) challenge on the part of PQA against the VLSI patents responsible for the $2 billion verdict against Intel. There has been a question in whispers behind the scenes about whether and to what extent the PQA challenge to the VLSI patents is a subterfuge because Intel could not challenge the patents in an IPR itself.

According to Merriam-Webster, the “Word of the Year for 2019 is “they” when used in the singular, typically to avoid ascribing a gender to the person being referred to. The larger point is this: language matters. Since this is a space dedicated to secrecy, let’s consider how we use language to determine who gets access to our trade secrets. For today, we’ll be looking specifically at how government does this. After all, they write the laws and so should be practiced at defining exceptions to property rights. Why should the government care at all about business secrets? Examples will help us here. Locally, the fire department needs to know what hazardous chemicals you might be storing at your plant, in case they have to come and put out a fire there. For different but equally compelling reasons, the Food and Drug Administration (FDA) insists on knowing exactly how drugs are made, and the Environmental Protection Agency (EPA) requires submission of pesticide ingredients. And then there is the government as consumer: last year the U.S. spent over $550 billion on purchasing goods and services from the private sector, and with all that economic clout comes the right to demand access to a lot of related data.

In 2011, as part of the American Invents Act (“AIA”), Congress significantly restructured the way in which previously issued patents could be challenged.   In some cases, existing post-issuance proceedings, like ex parte reexamination and reissue proceedings, were kept intact as such proceedings existed prior to the AIA.  In other cases, existing post-issuance proceedings, like inter partes reexamination, were replaced with new proceedings, such as the inter partes review proceedings (“IPRs”).    In addition, brand new proceedings were created, such as post-grant review proceedings (“PGRs”), covered business method patent review proceedings (“CBMs”), and supplemental examination proceedings.  In each instance, Congress made policy choices as to who could (or could not) bring and/or participate in such proceedings, and who could (or could not) raise challenges to decisions made by the government in such proceedings. 

This FOIA response confirms that dissents and concurring opinions are not desired by PTAB supervisors. In fact, Administrative Patent Judges (APJs) of the Patent Trial and Appeal Board (PTAB) must justify to the Vice Chief Judge why a dissent or concurring opinion should count toward production goals, otherwise the work performed does not count… Obviously, a policy that does not count dissents and concurring opinions toward production goals unless approved by the Vice Chief Judge has a chilling effect.

Director Iancu is knowingly and intentionally seeking to provide hope in the words he speaks because he believes a strong patent system is necessary for the U.S. economy to flourish. In part one of our interview we also discussed the need for transparency, and the troubling Freedom of Information Act processes employed by the Office that seem hopelessly broken. We discussed the posts grant challenge process, the PTAB, experience level of the Administrative Patent Judges on the PTAB and inter partes review.

It is difficult to understand why the USPTO will not respond to simple, direct FOIA requests. If they do not want to produce there are procedures for them to follow, and they can always do what they seem so fond of doing, which is produce hundreds of pages of completely redacted, blank pages. That at least would allow me to file a lawsuit and proceed in court to obtain this information. Still, why should I or anyone have to sue the USPTO to obtain this information? Everything I’m asking for should be readily available. It is this type of government by ambush mentality that has so convincingly led the community to rightly determine that the PTAB is the root of all the problems with the patent system today in America.

The PTO reports a case as affirmed if all claims are rejected for at least one issue on appeal and reversed if all claims are reversed for at least one ground of rejection. A case is only reported affirmed-in-part by the PTO’s statistics if at least one claim remains standing, regardless of which legal issue ((§101, §103, §112, etc.) the claim was originally rejected. Since a large portion of PTAB ex parte appeals involve rejections over more than one ground of rejection (between 35%-45% according to this statistical estimate), this reporting process masks what the PTAB is deciding on each legal issue presented to it. Because the USPTO data does not report the outcome of each legal issue in multiple issue cases, it is impossible to collect statistically meaningful data on outcomes of specific legal issues from the data set from the FOIA website.

On Thursday, May 11, 2017, I submitted a Freedom of Information Act (FOIA) request (see bottom) to the United States Patent and Trademark Office (USPTO). My FOIA request seeks a copy of any and all rules of judicial conduct, ethical policies and/or codes of professional or judicial conduct that apply to Administrative Patent Judges (APJs) of the Patent Trial and Appeal Board (PTAB).

Confused by USPTO stonewalling, I sent a FOIA request to the Office. Is it possible that the USPTO is not going to name a Regulatory Reform Officer? Is it possible that the USPTO is not going to have a Regulatory Reform Task Force at all? Is it possible that the USPTO will merely participate with the Department of Commerce’s efforts and not engage in their own independent review of regulations? Nature abhors a vacuum, and so too does Washington, DC. I guess this just means we are in a cycle where getting any real information out of the USPTO will require a FOIA request.

By letter dated March 10, 2017, the USPTO responded to Mr. Shuster’s FOIA request by informing him that “Michelle K. Lee is the Director of the United States Patent and Trademark Office.” This is the first confirmation from anyone at the USPTO, or from anyone within the Executive Branch. There still has not been an official announcement from the USPTO, Department of Commerce, or White House. Up until today the best evidence that Lee remained as Director had been that she allowed herself to be introduced as “Director of the USPTO” at an industry event and gave opening remarks at the most recent PPAC public meeting… But the more immediate question now becomes: How long will Michelle Lee remain Director of the USPTO?

According to these regulations cited by the USPTO, an extension is warranted in “unusual circumstances” where there is a “need for consultation… with another Federal agency having a substantial interest in the determination of the request.” On its face it would seem that invoking of 37 C.F.R. 102.6(c)(1) and (2)(iii) is an egregious abuse of authority and obvious violation of the Freedom of Information Act. Request for information about who is running the agency cannot under any reasonable definition create an “unusual circumstance,” and there seems to be no justifiable or defensible reason why another Federal agency would, could or should have an interest in Mr. Shuster, or the public, being properly informed about who is running the USPTO.

Michelle Lee talks about transparency, but the PTO is hiding behind redacted pages and claims of privilege to deny a legitimate FOIA request from Kyle Bass. “I don’t want to be embarrassed” is not a grounds for privilege and improperly asserting privilege is not being transparent… On page 407 there’s an email to Michelle Lee with briefing materials for the BIO meeting that were prepared by BIO. Not only are the many pages of the BIO briefing materials themselves redacted, but in the email the list of what’s included is redacted. We don’t even know what’s missing. How can materials prepared by BIO and shared with Ms. Lee be privileged?