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.