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).
This request is provoked due to a revelation that at least two APJs have been assigned to hear cases, and have been deciding cases and issues, relating to post grant challenges filed by former clients. See here, here and here. In both situations the challenger has been Apple, and in both instances the APJs formerly represented Apple as defense counsel in patent infringement proceedings.
Several weeks ago I made a request of the Communications Office, which is fairly typical for a publication to do. I pointed to the Code of Judicial Conduct applicable to Article III judges appointed pursuant to the U.S. Constitution. I asked if there was a similar code of conduct that applied to APJs of the PTAB. That inquiry had gone unanswered and unacknowledged. I assume at this point I will not receive an answer, or even an acknowledgement of its receipt. Therefore, my FOIA request became necessary.
I have been made aware of an all employees ethics policy that does not mention the PTAB or APJs specifically. This all employees ethics policy seems to be the only ethics policy applicable to the PTAB, which if true would be extraordinary given it only requires employees to recuse themselves for a single year after having worked for an employer. There is no time limit on the need to recuse for an Article III judge, and neither is there any time limit on the requirement to refuse representation when one has a conflict created by the opposing side being a former client. See Is the ethical bar for practitioners higher than for PTAB judges? Therefore, a single year being sufficient for an APJ on the PTAB seems wholly without precedent and lenient beyond belief.
Furthermore, 37 CFR 11.803 seems to contemplate the existence of rules of judicial conduct applicable to APJs. According to §11.803, a practitioner commits an breach of the rules of ethics if the practitioner becomes aware that an APJ has violated the “applicable rules of judicial conduct” and does not report such violation to the appropriate authority. Thus, it seems there must be rules of judicial conduct that are applicable to APJs somewhere.
In any event, the USPTO has confirmed receipt of my FOIA request and has informed me that a response is anticipated no later than Monday, June 12, 2017. Stay tuned!
To Whom It May Concern:
37 CFR 11.803 reads: “A practitioner who knows that a judge, hearing officer, administrative law judge, administrative patent judge, or administrative trademark judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the individual’s fitness for office shall inform the appropriate authority.”
Therefore, USPTO regulations contemplate the existence of some “rules of judicial conduct” that must apply to the Administrative Patent Judges (APJs) that make up the Patent Trial and Appeal Board (PTAB). I have searched for these judicial conduct rules that are applicable to the APJs of the PTAB and have been unable to locate any. To date all I’ve been able to find is a generic ethics policy that applies to all USPTO employees and does not mention APJs, the PTAB or judicial conduct. Several weeks ago I asked the Communications Office for information on such conduct rules. I have not received even an acknowledgement regarding that request, so I assume at this point I will not receive any response through those channels.
With this in mind, I request 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 of the Patent Trial and Appeal Board.
Please let me know if you have any questions regarding this request.