Are conflicts of interest at the PTAB leading to preferential decisions for Apple?
The lead APJ serving on the panel of multiple CBM reviews petitioned by Apple, who also wrote the final written decision on at least one CBM review petitioned by Apple and invalidated claims of the ‘772 patent, was Administrative Patent Judge Matt Clements. According to Clements’ LinkedIn profile, he has served as an administrative patent judge at PTAB since March 2013; up until that time he served as a patent attorney at international law firm Ropes & Gray going as far back to September 2006. While at Ropes & Gray, Clements was part of a legal team that represented Apple in patent infringement cases. According to legal party data made available by Law360, Clements served as counsel for Apple up to December 2012 and served on a team with fellow Ropes & Gray lawyer James Batchelder as well as Eric Albritton of the Albritton Law Firm. Both Batchelder and Albritton were counsel of record representing Apple in the Smartflash infringement case where the ‘772 patent was asserted against Apple. Batchelder and Clements both worked at Ropes & Gray’s East Palo Alto offices, where Batchelder served as managing partner, so there’s a distinct likelihood that Clements reported directly to Batchelder in his work with Ropes & Gray. The November 2014 petition by Apple for CBM review of the ‘772 patent was also filed by counsel from Ropes & Gray including Ching-Lee Fukuda, another one of the lawyers representing Apple in the Smartflash action. These types of relationships would have led to the recusal of a federal judge on a manner and yet APJs at the PTAB are not subject to rules that are supposed to prevent this kind of conflict of interest that comes with deciding a matter that includes a former employer.