Posts Tagged: "Judge Stacy Margolies"

PTAB Brass steps into IPR to decide Apple motion for sanctions

On August 22nd, an order was entered in the inter partes review (IPR) proceedings currently ongoing between between VoIP-Pal and Cupertino, CA-based consumer device giant Apple Inc. The order removed the panel of administrative patent judges (APJs) that had been adjudicating the IPR, replacing them with Deputy Chief APJ Scott Boalick and Vice Chief APJs Jacqueline Bonilla and Michael Tierney. This is the second time the panel of APJs has been completely changed in this particular IPR proceeding. Originally, the panel had consisted of APJs Barbara Benoit, Lynne Pettigrew and Stacy Beth Margolies. Although no explanation was provided (as is typical with the PTAB) the panel was changed a few weeks after we reported that APJ Margolies had previously represented Apple in patent infringement proceedings in U.S. district court.

Still No Answer From PTAB on Apple Sanctions Request Against VoIP-Pal After Six Months

And yet, despite this apparent vindication of VoIP-Pal’s patents against the strongest of odds in an executive branch tribunal where APJ panels are stacked in the interest of achieving policy objectives, VoIP-Pal and its current CEO Emil Malak still find themselves to be stuck in patent purgatory over a sanctions motion which the PTAB hasn’t decided for more than half a year… The fact that ex parte communications have caused such a stir in Apple’s IPRs against VoIP-Pal is very interesting given how the PTAB has reacted to allegations of such communications in the past. Anyone who followed the St. Regis Mohawk Tribe’s case at the PTAB will likely remember that the agency revoked the tribe’s ability to file motions in response to a request for discovery on the potential of political pressure caused by ex parte communications between APJs assigned to the case and their superiors at the PTAB. The PTAB denied that motion and restricted the St. Regis tribe’s ability to file motions within a month of St. Regis’ discovery request. That the PTAB has dragged its feet for more than six months on Apple’s request for sanctions on ex parte communications without the same level of punitive response is very telling.

Mohawk Tribe Ready to Battle over Ex Parte Communications between PTAB Judges

Attorneys for the Mohawk tribe have notified the USPTO that ex parte communications between an APJ assigned to the IPRs and an APJ not assigned to the IPRs cannot possibly fall within the deliberative privilege of (b)(5), as it is commonly referred to in FOIA matters… Shore concluded his e-mail to the USPTO putting the Office on notice of impending litigation, reminding the USPTO of its obligation to retain all information and documents in anticipation of a FOIA lawsuit that would seek to compel release of documents in non-redacted form… In reviewing the March 9, 2018 document release there are several other e-mail communications that raise the specter of improper ex parte communications in violation of the APA, both relating to the Mohawk RESTASIS IPRs, as well as the IPRs where an expanded panel of the PTAB refused to recognize a sovereign immunity defense made by the State of Minnesota.

PPAC meeting comes and goes with no discussion of PTAB conflicts of interest

At the May PPAC meeting Ruschke deferred questions on issues relating to possible conflicts of interest and specifically indicated the topic of conflicts would be discussed at PPAC’s next quarterly meeting.The PPAC recently convened once again, this time on Thursday, August 3, 2017. No issues of possible conflicts of interest were raised and there was no mention of the conflicts of interest questions that have raised very serious questions about the appearance of impropriety at the PTAB… The blindfold appearing in the common depiction of Lady Justice is there for a reason. It’s time to acknowledge that and fix this problem so that it never happens again. The USPTO must adopt a Code of Judicial Conduct for Administrative Patent Judges.

USPTO response to FOIA confirms there are no Rules of Judicial Conduct for PTAB Judges

The website link provided by the USPTO contains no rules of judicial conduct or codes of judicial conduct, which means that the USPTO has indirectly confirmed that there are no rules or codes of judicial conduct that apply to Administrative Patent Judges (APJs) of the Patent Trial and Appeal Board (PTAB). To call this revelation by the USPTO shocking is an understatement. 37 CFR 11.803 clearly contemplates the existence of rules of judicial conduct applicable to APJs, which obviously do not exist. The lack of any judicial rules of conduct or ethical rules specifically tailored for judges on the PTAB is highly informative, and explains why it was possible for at least two PTAB judges to decide post grant challenges filed by former patent defense clients.