In recent days, we’ve been reporting on a series of possible ethical issues concerning administrative patent judges (APJs) serving at the Patent Trial and Appeal Board (PTAB) within the U.S. Patent and Trademark Office. These issues first surfaced in an article published on this site on April 28th, when we noted that one APJ served on multiple panels issuing decisions in cases petitioned by Apple, a company which he had represented as defense counsel in patent infringement proceedings up to December 2012, a few months before being hired as an APJ at PTAB. On May 7th, we reported on another APJ and her prior representation of Apple before serving in review proceedings which were also petitioned by Apple.
These reports could lead to reasonable concerns among patent owners — already quite skeptical of the PTAB — that they are not being given a fair shake during PTAB proceedings, especially when those proceedings have been petitioned by Apple or other tech giants. Given that those kinds of professional relationships between judges and former clients would ordinarily lead to recusals in Article III federal courts, patent owners have every reason to question whether PTAB judges should be allowed to decide cases brought by their former clients.
Of particular interest to patent owners facing challenges at PTAB will be the Counsel tab, which is found in the top margin after logging into Lex Machina. Clicking this tab will bring a user to a page with a pair of search query fields, one for law firms and the other for attorneys. The attorney search is what we’ve used to find data on the aforementioned conflicts of interest at PTAB. Patent owners can type the name of each APJ on the PTAB panel to see if any of those judges have previously worked as attorneys in cases at district court going back to the year 2000. At the landing page for each attorney, users can then click ‘District Court Cases’ appearing in the top margin underneath the attorney’s name. Scrolling down the page will bring users to a list of district court cases on which the attorney has worked. The title of each case is clickable, linking to a Parties & Counsel page which will show users each party involved in that specific case. Clicking the arrow appearing prior to each party will create a dropdown box which shows the name of each attorney representing that specific party in that case.
Readers should be aware that not every case listed for an attorney will necessarily be a patent case, so we counsel caution rather than jumping to conclusions simply based on the search results. However, any patent owner who feels as though they’ve stumbled upon a potential conflict of interest should contact us and we will give the situation our full consideration.