Posts Tagged: "Judge Jacqueline Wright Bonilla"

Just days prior to our interview an announcement was made that PTAB Chief Judge David Ruschke would be stepping down and assuming new responsibilities. “At the PTAB, we will have new leadership. For now, come September 2nd, the acting chief will be Scott Boalick, and the acting deputy chief will be Jackie Bonilla,” Director Iancu said. “We’re going to post the position, the vacancy. I want to encourage everybody out there, both inside the PTO and from the outside, who is interested, and thinks will do an excellent job, to apply. We are at the beginning of the process for finding new leadership at the PTAB.”

Attorneys for the Mohawk tribe have notified the USPTO that ex parte communications between an APJ assigned to the IPRs and an APJ not assigned to the IPRs cannot possibly fall within the deliberative privilege of (b)(5), as it is commonly referred to in FOIA matters… Shore concluded his e-mail to the USPTO putting the Office on notice of impending litigation, reminding the USPTO of its obligation to retain all information and documents in anticipation of a FOIA lawsuit that would seek to compel release of documents in non-redacted form… In reviewing the March 9, 2018 document release there are several other e-mail communications that raise the specter of improper ex parte communications in violation of the APA, both relating to the Mohawk RESTASIS IPRs, as well as the IPRs where an expanded panel of the PTAB refused to recognize a sovereign immunity defense made by the State of Minnesota.

Notice what APJ Harlow wrote relating to IPR2017-01068 is word for word identical to what APJ Bisk wrote relating to IPR2017-01186. Indeed, the entirety of the concurring opinions are word for word identical. Obviously, the concurring opinions were shared internally in some form or fashion prior to being issued by the PTAB. But why? It seems perfectly reasonable for the St. Regis Mohawk Tribe to want to know who actually wrote these two concurring opinions. Did APJ Harlow and APJ Bisk cooperate and jointly write a single concurring opinion filed in two separate cases? Why would two APJs not assigned to the same case take it upon themselves to collaborate in writing a single concurring opinion? Are APJs not assigned to a case typically consulted? Did someone else write those opinions for APJ Harlow and APJ Bisk to make sure this particular viewpoint was incorporated into the decisions? How did APJ Harlow and APJ Bisk have access to the concurring opinions each would file?

The St. Regis tribe is seeking discovery on due process concerns posed by the potential of political or third-party pressure asserted to “reach an outcome inconsistent with the binding Supreme Court and Federal Circuit precedents.”… The St. Regis tribe is seeking the oral hearing to push for discovery in a total of 18 topics. These topics include the makeup of the panels in the St. Regis proceedings, the date each APJ was added to the panel, how the makeup of the panel was decided, who determined the makeup of the merits panel, when the decision on the panel’s makeup was made as well as the disclosure of all ex parte communications concerning the St. Regis case. St. Regis is also seeking communications made on the sovereign immunity issue between specific APJs, including APJs Jacqueline Harlow and Jennifer Bisk.