“If the PTAB is going to operate without even a modicum of transparency there is no reason why spoliation of evidence presumptions should not apply to their unexplained actions. The most egregious and nefarious inference should be drawn…”
Yet another in a long and growing line of unexplained – and seemingly unexplainable – transgressions by the Patent Trial and Appeal Board (PTAB) has recently come to light. After choosing to dissent from a decision of a panel when asked to reconsider an institution decision, Administrative Patent Judge James Arpin was mysteriously removed from the panel in ESET v. Finjan, IPR2017-01738. Without any warning, or explanation to the parties or the public, Lead Administrative Patent Judge Thomas Giannetti replaced Arpin. See How the Invisible Hand of the PTAB Supports Challengers.
Welcome to practice before the PTAB, where you have absolutely no idea who your judges will be from hearing to hearing, or if the panel will be mysteriously and without explanation or warning expanded to include executive leadership of the Board, or if the judges assigned to your case have been hand-picked by USPTO leaders in order to rule in a particular way, or even if the judges assigned to your case will deliberate with other judges not assigned to the case that you will never know anything about unless you both file a Freedom of Information Act request and the USPTO decides to answer the request.
But the question arises: Is it wrong to fill in unknowns with assumptions, and jump to the conclusion that something untoward has occurred?
Given the history of the PTAB and the way the tribunal has been administered throughout its brief tenure, the only reasonable thing for rational people to do is to suspect the worst unless and until it is proven otherwise. Call it a presumption of guilt if you want, but within the American system of jurisprudence the level of secrecy seen in proceedings of the PTAB is unprecedented. If there is nothing to hide why are they hiding so much, explaining nothing, and engaging in adjudication by ambush?
The American system of justice is built upon transparency. Transparency is mandatory for there to be a truly fair, balanced, open, honest and equal system where no party has a real or perceived advantage over the other. Transparency is a prerequisite to public confidence and a belief in a fair system. Without transparency decisions even innocent decisions can seem arbitrary and capricious. This is only compounded when light is periodically shined on the dark corners and we get a glimpse at what appears to be a rather seedy underbelly of inner dealings, secret deliberations, and an Office that isn’t afraid to pick winners and losers in contested cases.
The PTAB offers absolutely no transparency whatsoever. If there were an innocent explanation for APJ Arpin being removed from ESET v. Finjan the Board should have given the reason on the record. That is what every other court in America would do. For example, let’s say APJ Arpin believed himself unable to move forward on the case for some ethical reason. In any other court or tribunal in America he would publicly recuse himself. That is what happens in Article III courts involving constitutionally appointed judges – witness Chief Judge John Roberts recusing himself from any and all matters dealing with Microsoft, for example.
At the PTAB, instead of a transparent process, without any explanation as to why he was reassigned or decided he needed to recuse himself, APJ Arpin just disappears from the case without explanation. The one judge who voted in favor of the patent owner relating to an institution decision is mysteriously and without explanation removed. That looks bad and feels bad because it is bad.
If the PTAB is going to operate without even a modicum of transparency there is no reason why spoliation of evidence presumptions should not apply to their unexplained actions. The most egregious and nefarious inference should be drawn given the history of this overreaching tribunal. After all, even the Supreme Court has noticed what they have referred to as the “shenanigans” of the Board.
The PTAB has lost the benefit of the doubt. It is well past time for change, and change must start with transparency.
 The USPTO does not treat the Freedom of Information Act as a mandatory requirement. The law is simple and rather straight forward, with specific deadlines. I have had two requests pending since March, which have now been overdue since April. The last communication from the Office was received on May 7, 2018, asking me to be patient. That was over 10 weeks ago. One of the pieces of information sought relates to the names of Administrative Patent Judges, which one would thing ought to be relatively easy for the Office to provide.
Image Source: Deposit Photos.