DOJ Brief to CAFC Slamming Apple Highlights PTAB Code of Conduct Problem
Andrei Iancu, the Director of the United States Patent and Trademark Office (USPTO), has a real mess on his hands. This particular mess relates to the Patent Trial and Appeal Board (PTAB) and the astonishing reality that the Administrative Patent Judges (APJs) on the PTAB are not bound by any Code of Judicial Conduct, as is applicable to Article III federal judges. Instead, PTAB Judges are only bound by the same ethics standard that applies to all other employees, which requires them to recuse themselves from any decisions relating to former employers for one year. That is how several PTAB Judges have been able to adjudicate inter partes review (IPR) and covered business method (CBM) challenges filed by a former litigation client – Apple, Inc. What is scandalous is the dismissal of this behavior in the recently filed amicus brief filed at the United States Court of Appeals for the Federal Circuit by the United States Department of Justice (USDOJ) in the matter of Apple, Inc. v. Voip-Pal, Inc., Nos. 2018-1456, 2018-1457. In this case there are no clean hands, although you can certainly feel for the patent owner.