USPTO transparency concerns arise following whistleblower ruling

May 18, 2023

A regulatory regulation appointed authority has requested the U.S. Patent and Brand Name Office to quit forestalling a Patent Preliminary and Allure Board judge from hearing patent difficulties after he called out the workplace’s act of “stacking” boards — which has since been deserted — with some lawyers saying the choice features the organization’s well-established issues with straightforwardness since the section of the America Imagines Act in 2011.

Administrative Patent Judge Michael Fitzpatrick “had a reasonable basis to believe that management officials abused their authority” when then-Deputy Chief Judge Scott Boalick decided in 2016 to “expand” a patent board panel “without informing the parties,” according to a lengthy initial decision issued earlier this month totaling over 130 pages. Boalick joined a panel looking into Adidas’ challenge to a Nike patent covering a new type of fabric, along with the then-chief judge of the board.

Boalick is still employed by the patent office and was elevated to the position of chief judge on the board in 2018. A representative for the patent office declined to remark on the current month’s choice, which can be pursued further to decide on the Government Circuit.

According to Judge Fitzpatrick’s attorney, John Abramic of Steptoe & Johnson LLP, the decision from Administrative Judge Andrew Niedrick of the Merit Systems Protection Board “orders the [USPTO] to return [Fitzpatrick] back to his docket of AIA trials” if it is made official.

Abramic told Law360 that since 2018, “he was put on, exclusively, ex parte actions at the patent office.” In ex-parte actions, decisions made by patent examiners are reviewed, whereas, in AIA trials, disagreements between patent owners and challengers are decided.

A previous long-lasting patent legal counselor at McAndrews Held and Malloy Ltd., Fitzpatrick had been recruited by the patent office to act as a patent adjudicator in 2012, the year America Creates Acts produced results. The law had made the patent board boards that supervised difficulties in the legitimacy of licenses given by the organization’s inspectors.

Judge Niedrick wrote that the “explanation appears to conflict” with testimony from a vice chief administrative patent judge named Scott C. Weidenfeller, who stated that Judge Fitzpatrick was reassigned to ex parte cases because there were no statutory deadlines in those cases. Boalick testified in front of Judge Niedrick that the reassignment did not constitute a demotion or disciplinary action because “[a]ll cases at the board are equally prestigious, they are all impact

A patent challenge had been assigned to Fitzpatrick in 2013. Adidas had challenged a Nike patent, U.S. Patent No. 7,347,011 — which covered a type of fabric that Nike had created for its “Flyknit” running shoe line.

The legitimate question between the organizations over the legitimacy of the patent would take up a significant part of the next ten years. In a 128-page petition, Nike lawyers asked the Supreme Court to uphold the decision and limit the agency’s “roving license to impose itself” on patent challenges. Nike asserts that the most recent legal battle ruling from the Federal Circuit incorrectly broadens the board’s authority to cancel patent rights.

In 2016, the panel on which Judge Fitzpatrick served came to a conflicting conclusion regarding the patent’s validity. As per the declaration in the Legitimacy Frameworks Security Board case from that point Boss Appointed authority David Ruschke, he and Boalick chose to add themselves to the board to “convey a conclusive message” that the choice would basically comprise the board’s true situation on the bigger issue of adding substitute cases to petitions, something that patent office authorities had chosen was “vital.”

In an unrelated 2017 U.S. Supreme Court case titled Oil States Energy Services LLC v. Greene’s Energy Group LLC, the office admitted its larger practice of convening expanded panels to rehear cases in order for the board to reach results consistent with the USPTO director’s policy positions. Years later, the office’s practice of doing this would come to light. In remarks a year after the fact before the Patent Public Warning Council, Ruschke conceded that the cycle “could be called flipping or that could be called stacking,” however contended that these extensions expect to highlight significant issues, not direct discoveries.

Judge Fitzpatrick emailed Judge Ruschke and informed him that Deputy Solicitor General Malcolm Stewart hadn’t even told the justices the whole story shortly after oral arguments in that case, with Justice Neil Gorsuch noted that it appeared the USPTO was saying it would “stack the deck with judges whom we like.”

Judge Fitzpatrick wrote, “These representations made by Mr. Stewart on behalf of the office are incorrect, as panel expansion has occurred in at least one additional inter partes review, well after the institution stage and when patentability was being determined.” He was specifically referring to the Nike case. He asked somebody “to address the mistaken assertions made at the High Court.” Ruschke, who has since joined the patent office as an adviser, did not respond.

Judge Fitzpatrick carried on sending emails. To begin, to Joseph Matal, the office’s then-acting director. After that, to Andrei Iancu, who had succeeded Matal as head of the patent office. Neither answered. Judge Fitzpatrick claims that he called Iancu at some point to discuss the matter, but he did not receive a correction.

Matal, who is presently at Haynes and Boone LLP, told Law360 in an email that he doesn’t “really have a lot of familiarity with what occurred,” and declined to remark further. Iancu, the previous President Donald Trump nominee who is presently at Irell and Manella LLP, didn’t return a solicitation for input.

According to the judge’s allegations, in May 2018, Iancu “voiced a desire to USPTO management to terminate” Judge Fitzpatrick, and the “threat was conveyed” to him through various intermediaries.

The judge was removed from the Nike case a month later, along with every adversarial patent panel on which he served. Around this time, Weidenfeller, the vice chief administrative patent judge who has since left for Covington & Burling LLP, accused Fitzpatrick of a number of “insubordination” acts, including notifying other judges at a virtual “board-wide training session” that he had been removed from several institution panels due to a different issue. Weidenfeller later testified that he thought one of Judge Fitzpatrick’s follow-up emails to then-Judge Ruschke was “unnecessary and inappropriate,” defending the agency’s decisions regarding Judge Fitzpatrick.

These allegations were described as “contrived attacks on his character and performance as a judge” by Judge Fitzpatrick’s attorney, Abramic. Judge Niedrick at the Legitimacy Frameworks Assurance Board was comparably unpersuaded.

He wrote, “A disinterested observer with the appellant’s knowledge of essential facts could reasonably conclude that the agency, through the solicitor general, provided information that was material to the issue before the court that was inaccurate, erroneous, and/or incomplete.” Also, I find unpersuasive the proof acquainted by the organization with propose that the appealing party participated in the disobedient way of behaving.”

Some attorneys questioned by Law360 on Wednesday expressed concern regarding the lengthy ruling’s focus on the patent office’s use of expanded panels. “Especially concerning to learn that the practice was surreptitiously happening,” said Gene Quinn, the patent lawyer who runs the well-known intellectual property blog

“Not only confirms concerns about USPTO leadership exerting control over PTAB proceedings behind closed doors but raises additional deeply troubling concerns about their candor with the solicitor general’s office and Supreme Court,” Alex Moss, a lawyer for the Public Interest Patent Law Institute, told Law360. The U.S. Government Accountability Office was informed by 67% of patent board judges last year that they felt pressured to change some of their decisions in response to management reviews.

“The choice clarifies that previous Chief Iancu realized about the mystery board stacking, bogus portrayals, and [the] counter,” she added.

Ropes & Gray LLP attorney Scott McKeown, who chairs the PTAB practice, stated: Obviously there was some abuse there.” However, he told Law360 that because “all of this expanded practice stuff was discontinued years ago,” he was less concerned about the agency’s “some seedy underbelly.” It [was] a sad practice.”

McKeown claims that the board’s use of these expanded panels reflected a “brute force method” of ensuring procedural and legal compliance among its more than 100 judges.

“What prevented the workplace from proceeding to do it was that it was a terrible look,” he said. ” Saying that this was evidence that the PTAB “hates patents” and is “cooking the books,” everyone lost their minds.

Around 2018, Iancu and a modest bunch of other top patent authorities fired getting PTAB choices all things considered, and referring to themselves the board’s as’ the “precedential assessment board,” proclaiming that those choices must be stuck to by different adjudicators. McKeown noted that the office appears to have abandoned this practice as well. The office director now has sole authority to examine all decisions herself as a result of the Supreme Court’s 2021 decision in Arthrex.

Even though the patent office is no longer “stacking” panels, Saurabh Vishnubhakat, a former legal adviser who now directs the IP & Information Law Program at Yeshiva University’s Benjamin N. Cardozo School of Law, told Law360 that he anticipates the patent office to appeal its loss in the Fitzpatrick case.

Vishnubhakat stated, “There is a finding here that Judge Fitzpatrick’s belief that expanded panel rehearings in the Adidas-Nike case were illegal.” According to him, the office will most likely file an appeal to “get a contrary holding, one that says that any belief that this is unlawful can’t be reasonable because as long as a belief to the contrary is reasonable, there’s a cloud of doubt of legality over what they are capable of doing under the [office’s] standard operating procedure,” according to the judge.

Emil Ali, a lawyer who contributed to the office’s Rules of Professional Conduct and now works for McCabe Ali LLP to advise practitioners on ethical issues, told Law360 that the office shouldn’t appeal.

“I believe they will probably appeal it,” In any case, I would trust that they don’t pursue it,” said Ali, who portrayed the conceivable broadened lawful battle about this apparently deserted strategy as a potential “misuse of government assets.”

All things considered, he thinks the workplace needs to address the choice straightforwardly, to specialists, beyond the court.

“From the perspective of transparency and accountability,” Ali stated, “I think the USPTO would really benefit from releasing a statement about this case.”

“I think what makes a difference is that they say something, and I think the way that they haven’t done that is very lamentable,” he added.

Naturally, the long-standing critics of the patent office’s increased influence over patent disputes believed that abuse of power is not surprising.

Josh Malone, a volunteer with US Inventor, a group that regularly challenges various patent office decisions, stated, “I’m pretty familiar with that case, and the related shenanigans at the patent office.”

Malone stated, “We’ve known for a long time that you do not receive due process at the PTAB, and [Judge Fitzpatrick] is just another smoking gun.”

Steptoe & Johnson LLP’s John Abramic, Robert Kappers, and Christopher A. Suarez represent Michael Fitzpatrick.

The Division of Business, which runs the U.S. Patent and Brand Name Office, is addressed by William Horrigan of the U.S. Office of Exceptional Direction.

The case is Michael Fitzpatrick versus Division of Business, case number DC-1221-21-0423-W-2, preceding the Legitimacy Frameworks Insurance Board.

Source – Law360

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