Apple has filed a motion with the PTAB, here, asserting that letters from the former CEO of a patent owner to an original panel, a substitute panel, and Commerce Secretary Wilbur Ross constituted improper ex parte communications that warrant reversing the PTAB’s findings in favor of the patentee and, instead, either entering judgment in Apple’s favor or at least granting a new trial.
Boiled down, Apple argues that after the decision to institute was granted, the former CEO (and still “advisor” to the patentee) sent letters to the panel that had granted institution, and those letters were not made of record. That panel was replaced, without explanation to Apple (or anyone from what I can tell), and a substitute panel then took over the matter.
The former CEO then sent more letters — to both the PTAB chief judge and to the substitute panel which, again, were not made of record. (It’s not clear to me that Apple or the patentee knew of the letters at this time.). Other letters to the chief judge, the substitute panel, and even the Secretary of Commerce followed and the letters were not made of record and Apple was not notified (and, again, neither was the patentee, from what I can tell).
Then on September 18, the patentee posted the letters — calling them “independent” — on its web page. Then there were more letters.
The substitute panel in late November in its final written decision and found Apple had not established the claims were unpatentable.
A month later, Apple filed this motion, stating the facts and asserting that its due process rights had been violated, and more. Interestingly, Apple relies among other things, on the APA, arguing “the ex parte communications violate the APA, which prohibits an ‘interested person outside the agency’ from making, or knowingly causing to be made, an ex parte communication relevant to the merits of the proceeding with a member of the adjudicatory body.” (citing 5 U.S.C. § 557(d)(1)(A)).
Apple’s motion makes a few inferential leaps that, I think, undermine its credibility. For example, Apple spins the fact that the CEO said he had talked to the patentee’s lawyers into an assertion that the patentee’s lawyers knew of and helped the CEO write the letters — violating the cardinal rule that if you’re going to accuse someone of an ethical violation, don’t stretch. (It may be the lawyers did assist: my point is, that’s not what the letters say.)
Apple also admitted that it had known that, in May, that the former CEO had sent a copy of one of his letters to the court handling the pending litigation involving the patent, because the clerk of that district court had entered the letter on the docket. But, oddly, Apple said it had done nothing because it did not know the letter would influence the PTAB (again, inferring that the letter did influence the PTAB). Further, apparently Apple knew of (what it now says is) an improper ex parte contact but did nothing — even though after it learned of that letter the panel was changed — and it only did something after it lost the IPR.
It will be interesting to learn why the PTAB judges did not inform everyone of the letters (assuming they even received them, and that disclosure did not occur), but it looks like Apple knew in May of (what it now says is) a clear ethics violation, but did nothing, and at least as of September, the patentee knew of (what are allegedly) the improper ex parte communications, and did nothing.
So, let’s see how this gets sorted out.