Posts Tagged: "judicial ethics"

It is that time once again when we look back on the previous year in preparation to close the final chapter of 2017 in order move fresh into the year ahead. 2017 was a busy year in the patent world, although change was not as cataclysmic as it had been in past years, such as 2012 when the PTAB and post grant challenges began, in 2013 when AIA first to file rules went into effect, or in 2014 when the Supreme Court decided Alice v. CLS Bank. It was, nevertheless, still an interesting year… To come up with the list below I’ve reviewed all of our patent articles, and have come up with these top 10 patent stories for 2017. They appear in chronological order as they happened throughout the year.

At the May PPAC meeting Ruschke deferred questions on issues relating to possible conflicts of interest and specifically indicated the topic of conflicts would be discussed at PPAC’s next quarterly meeting.The PPAC recently convened once again, this time on Thursday, August 3, 2017. No issues of possible conflicts of interest were raised and there was no mention of the conflicts of interest questions that have raised very serious questions about the appearance of impropriety at the PTAB… The blindfold appearing in the common depiction of Lady Justice is there for a reason. It’s time to acknowledge that and fix this problem so that it never happens again. The USPTO must adopt a Code of Judicial Conduct for Administrative Patent Judges.

When just looking at the subset of final written decisions resulting from Apple petitions where APJ Clements was on the panel, 24 final written decisions deem all claims invalid while only one decision led to mixed claim findings. There are no cases where a panel including APJ Clements issued a final written decision in review proceedings petitioned by Apple where all claims have been upheld.

The website link provided by the USPTO contains no rules of judicial conduct or codes of judicial conduct, which means that the USPTO has indirectly confirmed that there are no rules or codes of judicial conduct that apply to Administrative Patent Judges (APJs) of the Patent Trial and Appeal Board (PTAB). To call this revelation by the USPTO shocking is an understatement. 37 CFR 11.803 clearly contemplates the existence of rules of judicial conduct applicable to APJs, which obviously do not exist. The lack of any judicial rules of conduct or ethical rules specifically tailored for judges on the PTAB is highly informative, and explains why it was possible for at least two PTAB judges to decide post grant challenges filed by former patent defense clients.

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).

The blindfold appearing in the common depiction of Lady Justice is there for a reason. According to Wikipedia, Lady Justice has been depicted with a blindfold since at least the 16th century, with the blindfold representing impartiality. When impartiality of the system, or the judges who are charged with administering the system, is questioned it is a very big deal… We have found yet another example of a situation where an PTAB judge has issued a decision and is participating in post grant administrative proceedings as a judge in a case where a former client is the petitioner.

Had APJ Clements not been a member of the PTAB and one of the patent owners – let’s say Smartflash for example – had come to him and asked him to represent them in a PTAB proceeding against Apple, the conflict of interest question would have been a much easier question. Having represented Apple previously as defense counsel it would seem that the duty to a former client under 37 CFR 11.109 would prevent Clements from representing the patent owner adverse to Apple and now charging Apple with patent infringement, which is a prerequisite to the filing of a CBM petition. Had Clements represented Smartflash in any of the CBM proceedings brought by Apple on which he sat as a judge there would seem to be a direct and irreconcilable violation of the ethics rules applicable to patent attorneys and patent agents. How truly ironic, and pathetically sad, it would be if the ethical bar set for practitioners is so much higher than the ethical bar the USPTO sets for its own Administrative Patent Judges. How could that possible? In what universe would it make any sense to have a lower ethical bar for judges deciding cases than for patent practitioners?

If an APJ making decisions in a case within 18 months of having represented a former client complies with whatever USPTO conflict rules or guidelines apply to PTAB judges, the USPTO conflict rules or guidelines are too lenient and must be changed. PTAB just should not be deciding cases involving post grant petitions filed by former defense clients, and under no circumstances is 18 months long enough to alleviate any concerns of bias or take away the appearance of impropriety… If identification of the real party-in-interest is so important perhaps that transparency should be a two-way street. Perhaps there should be a public Code of Conduct for PTAB judges, and perhaps the USPTO should give stakeholders the opportunity to be heard on whether 2 years is an appropriate length of time to wash away a conflict of interest, or the appearance of impropriety that exists when deciding cases dealing with former clients. My guess is most patent owners would be adamantly opposed to PTAB judges deciding petitions challenging patents brought by their former clients.