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23 “Patent owners, particularly those who lost their patents at the hands of challenges brought by Apple in petitions where Clements participated on the panel, will rightly ask whether the entire process was a charade.”
Optics: “1: a science that deals with the genesis and propagation of light… or 2: the aspects of an action, policy, or decision (as in politics or business) that relate to public perceptions).”
IPWatchdog recently learned that Apple, Inc. has hired former Administrative Patent Judge Matt Clements. Although Clements’ LinkedIn profile does not reflect the fact that he has left the Patent Trial and Appeal Board (PTAB) as of this writing, a search of the California State Bar Attorneys Roster clearly identifies Matthew Clements as being employed by Apple, Inc. in Cupertino, California. See Clements CA Bar Attorney Profile.
A Lethal Cocktail
If the name Matt Clements rings a bell it is because IPWatchdog has rather exhaustively covered the remarkable ethical transgressions that have taken place at the Patent Trial and Appeal Board (PTAB) over the past several years, and Clements was the protagonist in chief.
As was first reported by Steve Brachmann, Clements represented Apple, Inc. as patent infringement defense counsel up to his appointment as an APJ in March 2013. Clements then proceeded to preside over several dozen post grant challenges brought by Apple. Not surprisingly, Apple did extraordinarily well in those challenges, leading Brachmann to conclude that having Clements on the panel for an Apple petition was a lethal cocktail for patent owners.
In response to a Freedom of Information Act (FOIA) request submitted in May 2017, the United States Patent and Trademark Office (USPTO) confirmed that there are no specific ethical provisions that apply to Administrative Patent Judges, and that the only policy that governs these APJs that serve on the PTAB is the all-employees ethical rules of the Department of Commerce, which require no employee to be involved in making a decision involving a former employer for a period of one year after leaving the former employment (two years in the case of a political appointee). See Disqualification and Recusals.
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Questions of Duty
Clements did recuse himself for the minimum one-year after representing Apple and joining the PTAB. The problem, however, is that, as an attorney, there is no such sunset period on ethical obligations. So, while Clements and the USPTO may be able to argue that there were no violations of Department of Commerce ethical guidelines, those were not the only ethical rules that would have bound Clements.
Interestingly, had APJ Clements not been a member of the PTAB, and had one of the patent owners challenged by Apple come to him and asked him to represent them in a PTAB proceeding initiated by Apple, the conflict of interest question would have been easy. Having represented Apple previously as defense counsel, he would have had a duty to a former client under 37 CFR 11.109, which would have prevented him from representing the patent owner in a proceeding adverse to Apple. If Clements could not have represented the patent owner, how could he have been capable of sitting as an APJ to hear the case?
To excuse the actions of Clements is to fundamentally misunderstand the duty of an attorney. But Clements is not the only one to blame. Initially, the USPTO could have been blindsided by an attorney turned APJ not keeping track of their own conflicts, but once made aware of the Clements situation, as well as another similar situation, why has the USPTO still not created ethical rules or a code of conduct for APJs?
Worse Than Terrible
Of course, the USPTO had nothing to do with Apple hiring Clements. And calling this hiring “bad optics” does not begin to scratch the surface of what can only be described as an extraordinarily poor decision by Apple. Patent owners, particularly those who lost their patents at the hands of challenges brought by Apple in petitions where Clements participated on the panel, will rightly ask whether the entire process was a charade. The optics are terrible—worse than terrible really.
Who would believe that an attorney, who even after becoming a judge remains an attorney and is bound by the same rules of ethics that bind all attorneys, would represent a client, become a judge and then decide dozens of cases in favor of that former client, and then go back to private practice and be hired by that client? If this were written as a plot for a patent suspense thriller the script wouldn’t pass the smell test, but that is precisely what has happened.
IPWatchdog reached out to the USPTO for comment but had not heard back as of the time of publication. We will continue to update this article as the story develops.
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Join the Discussion
23 comments so far.
Aixin
May 28, 2019 06:30 amTFCFM and Jamoke:
“Furthermore, relating to Apple’s hiring of an APJ whose view of the law is alleged to have squared with Apple’s view of the law, it can hardly be considered surprising that Apple might offer employment to such an APJ.” Give us a break, this is the lamest excuse i have ever heard. Since when a huge multinational company fighting to win in court all over the world, has a certain specific view of the law? All they care is to win, and this story shows one method of payment to win.
This is a rigged game of smelly musical chair, every which way you turn, its stink reeks to high heaven.
Yuan Savvy
April 30, 2019 10:27 pmHow come you can not find these kind of “optics” or “coincidences” on inventors side?
By the way for PTAB judge, Kevin C. Trock see the two links below:
https://www.linkedin.com/in/kevin-trock-6949236/
https://www.linkedin.com/in/kevin-c-trock-6a79586/
Optics?
TFCFM
April 29, 2019 10:47 am@Anon
>Your position here comes across TOO ardently, and appears to be a type of “shutdown” by labeling all of this as “gossip.”
I disagree. I have merely cautioned that we shouldn’t ring the “misconduct” bell merely on account of some bad optics.
Bad optics are, surely, cause to look more closely for misconduct. However, bad optics are not misconduct in themselves. My objection is to the folks who see bad optics and claim “!!!MISCONDUCT!!!” without identifying anything that actually appears to be misconduct. Far from attempting to “shut down” discussion, I seek to focus the discussion on the issue raised, rather than foregoing the discussion and jumping to a desired conclusion.
Yuan Savvy
April 29, 2019 08:17 amIn multiple PTAB rulings in favor of big corporations that Matt Clements sat, Kevin Trock wrote the patent killing decision in clear violation of court claim constructions and total disregard for RPI.
Yuan Savvy
April 28, 2019 09:10 pmMatt Clements may be the most high profile PTAB judge but the most destructive title should go to Kevin C. Trock whose association with K&L Gates make Clements acts Mickey Mouse stuff!
Anon
April 23, 2019 10:19 amTFCFM,
You raise a valid point with “public accusations of professional misconduct should — if made at all — be based on more than a “suspicion in one’s gut.”” – but in your rush to that position, you make mistakes on several fronts.
First, you seem to have missed some of the points shared in the actual article – things that DO provide “more than a suspicion.”
Second, when it comes to impropriety – and especially judicial impropriety – the yardstick is NOT some type of “objective physcial evidence” as one of the important points to remember is “the appearance of impropriety.”
Your position here comes across TOO ardently, and appears to be a type of “shutdown” by labeling all of this as “gossip.”
I cannot agree with such an approach.
Such an approach would chill discussions that SHOULD happen – and should happen prior to the availability of any “hard evidence.”
So while I agree that discussions that effect REAL careers of REAL people should be handled perhaps more carefully than a rousing debate of a point of law, there IS plenty here that you do not appear to have grasped in YOUR condemnation of the discussion. And to me, well enough to BE having the discussion.
TFCFM
April 23, 2019 09:15 am@BS
Gossiping in an Internet comment space is one thing. A respectable blog casting aspersions that may adversely affect the REAL careers of REAL people is another.
My point is simply that public accusations of professional misconduct should — if made at all — be based on more than a “suspicion in one’s gut.”
Brian Smith
April 22, 2019 01:35 am@TFCFM
“However, absent *some* evidence that APJ Clement and Apple conspired”
Were you born yesterday ? How naive do you think people are : Oh nothing to look here guys!! just a regular guy getting a regular job at apple bee’s
Let us have *Discovery* of all personal communication, email text , phone call records and I can bet $100 : Mr Clement and Apple will not look as pure as the driven snow, that you are allege they are.
TFCFM
April 20, 2019 03:43 pm@Brian Smith:
I’m a long-time reader, 1st time commenter. No relation to “Jamoke,” whom I presume to be another commenter. No relation to Apple or APJ Clement, either. Just a long-time patent attorney who gets frustrated with over-zealous assertions of misconduct. I think you’ll find life a lot easier if you don’t presume everyone who disagrees with you to be the devil incarnate and part of a nefarious plot to disagree with you.
I’ll be the first to admit the optics don’t seem ideal here. However, absent *some* evidence that APJ Clement and Apple conspired either i) to put a friendly judge on the bench or ii) to have a disinterested judge throw cases for a future reward, I think the assertions of misconduct are a little irresponsible.
(As an aside, I believe the standard for judges is whether they can be impartial, rather than whether they’ve ever had a past relationship with a litigant — otherwise it would be foolish *ever* to appoint a judge who practiced at a law firm.)
Gene Quinn
April 20, 2019 12:57 pmBeck-
Obviously, you are not a lawyer, or if you are you are a lawyer who doesn’t understand ethics. Judges leave the bench all the time and enter private practice. There is nothing wrong with that. The ethical rules apply to those Judges both while they are Judges and after.
If you don’t see the difference there is no amount of explaining that anyone can do that will help you see or understand. I do, however, invite you to wake up.
A Judge cannot ethically decide cases involving former clients.
Beck
April 19, 2019 09:58 pmWhat about Judge Essex practicing now at Hogan Lovells? (1) The distinction between ITC and PTAB, and (2) the distinction between working for a law firm and working for a company, do they matter? If so, how? Considering Apple, not only as patent challenger, but patent applicant as well.
Brian Smith
April 19, 2019 05:34 pmPosts written by “Just Some Patent Attorney Jamoke” and “TFCFM” Seem to be in same style, tone, voice, overall length, and paragraph length, AND I would probably guess written by the same guy on behalf of Apple or Mr Clements, or a friend of Clements, or someone from Apple’s team who hired Clements.
SVI
April 19, 2019 01:12 pm@Pro Se #8, I think the abuses and corruption in other countries can be worse. At least America has a system that is designed to uncover and overturn corrupt rulings, but right now the system does not appear to be working.
In regard to Apple’s “optics” — it takes on another meaning as the company’s AR glasses are rumored to be launched next year. That is the area of my patent portfolio, with my first filing in 2010.
PTO-Indentured
April 19, 2019 10:47 amThe Most Valuable U.S. Invention Ever Created: The PTAB
#2 (figuratively?): AIA – the America Infringes Act
Contrived to institutionalize an extremely profitable and thus addictive, double-standard.
Right on JPM/@1, Nyguyen@3, jacek@7
TFCFM
April 19, 2019 10:25 amIt’s certainly proper to watch and to question the ethics of all attorneys – even those who have become judges. In this instance, however, I think the conclusion may be improper. Based solely on the facts presented in the post, APJ Clements’ seem consistent with Ethical rules applicable to lawyers (none of which are specifically called out in the blog post).
Looking to Virginia’s rules (not knowing where APJ Clements is authorized to practice and in view of the fact the most PTAB proceedings will presumably occur in Va.), we see from Rule 1.7 (Conflicts of Interest; General Rule) various circumstances in which a lawyer may not “represent a client.” APJs do not, of course, “represent” either party to a dispute before the PTAB.
Similarly, Rule 1.8 (Conflicts of Interest; Prohibited Transaction) enumerates several situations in which a lawyer’s participation is ethically limited. None of the enumerated situations appears to prohibit a lawyer from serving as an APJ in which a former client is a party.
Rule 1.9 (Conflicts of Interest; Former Clients) has three parts. The first two (1.9(a) and 1.9(b)) relate to representation of parties, which is not a function of an APJ, as set forth above. The third part (1.9(c)) prohibits lawyers from using information acquired during representation of a client *against* that client in certain future situations. To the extent that that rule might prohibit an APJ from using such information to the detriment of a former client seems entirely consistent with the obligation of APJs to render judgements on the case presented to them, and not on “secret background information” gained by an APJ during previous duties.
Furthermore, relating to Apple’s hiring of an APJ whose view of the law is alleged to have squared with Apple’s view of the law, it can hardly be considered surprising that Apple might offer employment to such an APJ. This is so despite my opinion that it might have be wiser for Apple to hire a senior attorney who harbors views different from Apple’s, both to obtain a broader scope of views on issues facing the company and (more cynically) to remove from the bench an APJ unlikely to rule consistently with Apple’s view of how the law should be.
It has long been rumored that assertions of “inequitable conduct” are simply how patent attorneys greet one another. When making claims of ethical misconduct, we ought to temper our emotions and cite, chapter and verse, the precise rules alleged to have been violated and the facts demonstrating such violations.
With respect to the authors of a frequently-helpful blog, I think this post missed the mark in this instance.
Pro Se
April 18, 2019 08:11 pmW O W: And the saying stands true… Only In America.
jacek
April 18, 2019 04:27 pmI had twice experience dealing with administrative judges. Every time was quite apparent that they represent other interest than law and or “justice”. One openly expressed sympathy for my opponent and every time was ruling in his favor regardless of anything. Every time i was able to appeal his “ruling” and win. The other was playing games with paperwork. Same experience elsewhere.
Just Some Patent Attorney Jamoke
April 18, 2019 01:56 pmGene, I’m no fan of Apple or Silicon Valley, but I think your statement that “[h]aving represented Apple previously as defense counsel, [APJ Clements] would have had a duty to a former client under 37 CFR 11.109, which would have prevented him from representing the patent owner in a proceeding adverse to Apple” paints with too broad a brush and is misleading here.
In fairness, 37 CFR 11.109 prohibits a practitioner from representing “another person in the same or substantially related matter” adverse to the previous client. Setting aside the fact that the role of an APJ is not adverse to either party, the appearance of impropriety could arise only if APJ Clements had presided over cases as an APJ that were “the same or substantially related” to matters in which he represented Apple. (See also ABA model Rule 1.9).
You have provided no evidence of this.
I get it – the USPTO acts capriciously at times. I get it – big business uses its power and influence unavailable to, and sometimes to the detriment of, the little guy. I get it – this looks like the revolving door of government “service” to private employment and around we go.
But I think you are being disingenuous when you leave out the “the same or substantially related” part of the rule and attempt to implicitly accuse someone of ethical violations, without evidence, by couching your argument in an incomplete and hyperbolic statement of the ethics rules and “optics.” It’s one thing to advocate for reform of the PTAB and USPTO, but at least be intellectually honest about your argument. Because, hey – reasons.
I’m not a USPTO employee; I’m not Matt Clements; I’m Just Some Patent Attorney Jamoke.
outofmanyone
April 18, 2019 12:54 pmSeriously, though, have we just entered the twilight zone? Ask ANY law student or newly minted lawyer about this fact pattern, and they will all immediately spot at least the two HUGE ethical concerns Gene points out (attorney becoming judge over prior client, and judge becoming attorney for client over which he regularly judged). Maybe we need to figure out his political leanings, then we could at least get 1/2 the country mad about it 🙂
Bemused
April 18, 2019 10:25 amGene, you’re absolutely correct to delineate between the ethical requirements of federal government employees and those of attorneys. In the former, the revolving door of public-to-private sector employment is well-known and well-established. In the latter, attorneys are (purportedly) held to a much different (higher) standard.
Martin K Nguyen
April 18, 2019 09:37 amAbsolutely agree with JPM. PTAB hurts small inventors, and PTAB directly or indirectly let big corporations and foreign companies swallow US innovative small businesses.
Night Writer
April 18, 2019 07:53 amOne thing would be interesting to find out is how much money is he making at Apple? Is it above a market rate? It would be interesting to find out how much money other PTO employees are making after leaving the PTO like Lee.
JPM
April 17, 2019 09:36 pmThe PTAB needs to be shutdown. It cannot be reformed. What a scam it turned out to be.