Federal Circuit Rejects Arguments of Bias at the PTAB

Mobility WorkX v. Unified Patents (Fed. Cir. 2021)

In a 2-1 decision, the Federal Circuit has rejected Mobility’s argument that the PTAB Judges have an improper financial interest in instituting AIA proceedings.  The baseline here is that the patentee presented evidence that Board members who institute more AIA proceedings receive better performance reviews and more bonus money.  A higher institution rate also ensures job stability for administrative patent judges.  The argument then is that those incentives to institute constitute a due process violation under cases such as Tumey v. Ohio, 273 U.S. 510 (1927) and Ward v. Monroeville, 409 U.S. 57, 60 (1972).

To be clear, none of the USPTO rules or practices provide expressly give more money or quota-points for initiating IPR.  However, the only way to receive points for judging an IPR is to first institute the IPR. And, most of the quota-points are accumulated post-institution.  Likewise, the PTO receives substantial fees for institution.

The majority entertained the arguments, but ultimately rejected them after concluding that any financial interest was too remote.

Amicus curiae US Inventor, Inc. presents a statistical study purportedly showing that there are more meritorious institution decisions in September (at the end of the APJ performance review year) than in October (at the beginning of the performance review evaluation period). This hardly establishes that APJs are instituting AIA proceedings to earn decisional units.

Slip Op. at Note 7.

The majority decision was authored by Judge Dyk and joined by Judge Schall.

Judge Newman wrote in dissent arguing that the status quo creates the potential appearance of bias and that it is the Federal Circuit’s responsibility to resolve the concerns.

132 thoughts on “Federal Circuit Rejects Arguments of Bias at the PTAB

  1. 11

    In view of the lengthy arguments below as to how much the IPR petition can be supplemented later if an IPR is declared, this is right from the Federal Register on the final IPR rules:
    “As to filing a supplemental information during inter partes, post grant and covered business method patent reviews, the final rule clarifies that a request for the authorization to file a motion to submit supplement information is made within one month of the date the trial is instituted, and the information must be relevant to a claim.
    A petitioner who seeks to submit late
    information, or information that is not
    relvant to a claim under review, will be
    required to show why the information
    reasonably could not have been earlier
    obtained, and that consideration of the
    information would be in the interests-of justice
    (§§ 42.123(b)–(c), 42.223(b)–(c)).”

    1. 11.1

      That’s right and the patent judges have already examined all the issues and at institution and decided that it is more likely than not that the claims are invalid. And Newman’s point is that by instituting they have already taken a position on each issue and so there should be a different group of people conducting the IPR than deciding whether to institute the IPR.

      I said this below pretty clearly but the smoke blowers have had a grand time confusing the issues.

      1. 11.1.1

        Notice too that if you read through the ridiculous yappy arguments below that not one of them actually address the point that Newman made.

        Instead there is deflection, mischaracterization, and strawmen in abundance.

        Just ridiculous that this blog is infested with anti-patent judicial activists that regularly illustrate that they have little regard for a fair discussion on the merits.

      2. 11.1.2

        [B]y instituting they have already taken a position on each issue and so there should be a different group of people conducting the IPR than deciding whether to institute the IPR.

        Why? The panel at institution makes a merits decision based on a reasonably complete evidentiary record (as you have been at pains to explain to Morse below). Why does “fairness” or “due process”—in your view—require that a different panel also reach the same conclusion on essentially the same record?

        If this invalidity contest were being held in a district court, would you consider the invalidity conclusion to be unfair, or lacking due process if only one jury were to reach an invalidity verdict? Are two separate verdicts by two separate juries necessary for us to acknowledge that the proceedings were fair?

        I agree that Judge Newman made this argument, but it is an unusually poor argument for one as astute as she is. This argument just does not carry the case across the line.

    2. 11.2

      Filing of supplemental information is rare. The “arguments below” pertain to the entry of responsive evidence and to discovery during trial.

        1. 11.2.1.1

          Ah, that would be no.

          From dealing with my pal Shifty, you have given him (yet another) “out,” because you are not using the terms precisely enough.

          You should take this comment in the same vein as my earlier notation to you on the ‘examine/judge’ wording.

          Separately, I am hoping that Shifty engages on the deeper impacts of “this is not an examination.”

  2. 10

    There seems to be quite a bit of confusion about the difference between examination of a patent application and a trial at the PTAB.

    The Director will cause an examination of a patent application (35 usc sec. 131) that may result in a notice of rejection and a reexamination (sec. 132).

    In a post-grant review such as an IPR, a petitioner files evidence that supports the grounds on which the challenge to each claim is based. Sec. 312. The Director (through the PTAB) determines if there “is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” Sec. 314.

    The petition may be denied but if granted a trial may be instituted in accordance with Sec. 316. CFR Part 42 specifies how evidence may be introduced during the trial by the parties, which may include additional documents, affidavits such as expert declarations, and written depositions (most often, cross-examination of expert witnesses) offered by a party against or in support of patentability.

    After closing of the evidence, the PTAB provides a final written decision “with respect to the patentability of any patent claim challenged by the petitioner and any new claim added.” Sec. 318. The final written decision is informed by the requirement that during trial – the inter partes review — the petitioner “shall have the burden of proving a proposition of unpatentability by a preponderance of the evidence.” Sec. 316(e).

    Thus, in a post-grant review such as an IPR, there are the distinct phases of (1) determining if there will be a trial — an inter partes review — and (2) determining if, on the record that has been supplemented and completed during the trial, the petitioner has shown unpatentability by a preponderance of the evidence on that record.

    1. 10.1

      Goodness, you want blow smoke.

      The petition is the primary document to determine whether to institute the proceeding and for determining the final disposition of the petition.

      So if you read my post below at 8 it explains why having the same people decide whether to grant the petition and conduct the proceeding is a problem and why there is a motivation to grant to the petition.

      More smoke coming…

      1. 10.1.1

        Please use more of your smoke to explain your comment at 5.1.3.1. Where you accused me of “making things up.” Where you asserted that the record at institution and and at final decision is “not different” and is indeed “the same?” And how my saying the record is different is “Total BS?” A “total lie?”

            1. 10.1.1.1.1.1

              Lol – believe it or not, but someone merely disagreeing with you is not a sign of being weak minded.

              You want to use that label? You need more — much more.

              1. 10.1.1.1.1.1.1

                What you do anon is play into the hands of these ridiculous people. Their goal is to be disruptive and blow so much smoke that anything that is said is inaccessible to the average person.

                1. There is no “playing into the hands” here Night Writer.

                  Shifty happens to make a valid point. Goodness knows that I singularly shellack Shifty more than anyone (of course, that’s largely due to his past 0bsess10n with me), but I have never lost a contested point to him (as you are doing so here — and badly so).

                  I “get” that you recognize my point below on the use of the word “examine,” and I “get” that you now want to walk back your position a bit from “ALL” info at the institution decision point to something like “MOST” — but even that won’t suffice to recognize that there simply IS additional judging going on after the institution decision point.

                  You would be better off noting (one of my provisions) that it is AT the institution decision point regardless of any further actions, that one of the critical sticks in the bundle of property rights of a granted patent (the presence and level of the presumption of validity) has been taken with no recompense in violation of the Constitutional takings clause.

        1. 10.1.1.2

          S. Morse>>

          The record is not “different”. The petition is the primary document at institution and in the invalidity determination. The record is at best supplemented.

          You are just blowing smoke and mischaracterizing the record.

          What a POS.

          1. 10.1.1.2.1

            And stop trying to get all this mileage out of my saying “examination.” Yes I used the wrong verb. Whoopie.

            Stop the ridiculous lectures.

            Tell us again how the petition to institute isn’t the main document and how the record is “different” once the IPR is instituted.

            1. 10.1.1.2.1.1

              Recently discussed Valve Corp. v. Ironburg Inventions (Fed. Cir. Aug. 17 2021) involved two IPRs. I took a brief look at the first-named, IPR2017-00858.

              The IPR file is available to anyone with Internet access via PTAB E2E.

              In that IPR, 44 papers and 45 exhibits were filed during the trial (following the Decision to Institute).

              The Exhibits included multiple patents, publications, and certified prosecution histories. The papers included the Patent Owner Response and multiple motions to exclude evidence and oppositions to the motions to exclude.

              The Exhibits also included a 26 page declaration from Patent Owner’s expert witness and a 103 page Petitioner’s deposition of that witness. Patent Owner’s expert submitted a second declaration (15 pages) that was accompanied by a second deposition of the witness (33 pages). Also included is a 36 page transcript of a deposition from a District Court Action. These exhibits were in addition to multiple declarations filed by Petitioner’s fact and expert witnesses.

              Incidentally, the Fed. Cir.’s disposition of the appeal resulted in large part from discussion and consideration of witness testimony submitted during the trial. After the IPR was instituted.

              1. 10.1.1.2.1.1.1

                S. Morse

                Anyone that has ever done litigation knows that all that fluff was just to prove a point or two in the primary document—the petition to institute the IPR, which you still haven’t acknowledged is the primary document that has not changed.

                All of those documents just come down usually to was it obvious to combine two references or does a reference disclose what the primary document–the petition to institute–says it does.

                And—we all know you picked an extraordinary IPR with lots of extra documents when usually there are just a few that aren’t all that long.

                1. You are wrong on all counts. That’s how we know you’ve never been within a thousand yards of an IPR.

                  And what happened to your argument that the record is “not different” following institution?

                  As for “picking” I did no more than look back and find the latest Fed. Cir. case discussed here that involved the merits of an IPR.

                  An IPR is Not An Examination.

                2. Proving a point or two (along with the patent holder’s counters) tends to be a rather important addition to the record — in ANY instance.

                  You just don’t have the upper hand on THIS issue, Night Writer.

                  … and worth emphasizing again (but for reasons I am not certain that my pal Shifty grasps):

                  An IPR is Not An Examination.

                3. >>You are wrong on all counts. That’s how we know you’ve never been within a thousand yards of an IPR.

                  So no actual substance but I am just wrong. OK. Sure.

                  >>>And what happened to your argument that the record is “not different” following institution?

                  The institution petition is the primary document and once you go through it and decide on institution you’ve done 80 percent of the work. “Different” is clearly wrong. You may use the word “supplemented” as I said below.

                  >>An IPR is Not An Examination.

                  So I loosely used the word “examination” once and admitted it was wrong and corrected myself. And you hang your entire argument on this. Sad. This is called a strawman argument.

                  Newman’s point I made originally remains right. What I’ve said is correct. You are talking about a bunch of minor supplemental documents that go to a few single issues that the patent judges use to interpret the primary document or the response to the primary document.
                  I do give you full marks as a smoke blower. Anecdotally, people I know that are patent judges have told me about the same thing as I have said here.

                  I am not sure why you think because a few supplemental documents are added that add little work for the patent judge are a big deal. Nor have you admitted that the primary document remains the same throughout the process. I can only assume that you have never done litigation and don’t understand that huge documents like this get generated but aren’t much work for the judge.

                  But whatever. I am done with this one.

                4. Night Writer – you were done when you attempted 100%.

                  That you now backpeddle to 80% really does not help you.

                5. Wow. Hanging around with all these t rolls has finally turned you anon.

                  Time to reset yourself anon.

                6. “So no actual substance but I am just wrong. OK. Sure.”

                  As I said, you are wrong on all counts. Now you want “actual substance.” From others?

                  Ok. Number One, you said “Anyone that has ever done litigation knows that all that fluff was just to prove a point or two in the primary document.”

                  Wrong. That “fluff” was “not just to prove a point or two in the primary document.” The dispositive witness testimony (according to the Fed. Cir.) in the PTAB trial of Valve Corp. v. Ironburg Inventions concerned whether a document was actually prior art.

                  Shall we go on?

                7. S. Morse >>The dispositive witness testimony (according to the Fed. Cir.) in the PTAB trial of Valve Corp. v. Ironburg Inventions concerned whether a document was actually prior art.

                  And you think that is a big deal? It isn’t. And that is characterized exactly as I said it was. I’ll bet the response said it wasn’t prior art and laid out the reasons and the deposition (which the patent judges didn’t have to be there for) was just an elaboration of this one issue.

                  So, again. Nice try. You are trying to claim that depositions are some huge amount of work for judges when they are not and you won’t admit that the primary documents and issues are the same as they are at institution.

                  Look, boy, your game is obvious. You just ignore the important points and yap on and on about things that are wrong. And you ridiculously repeat over and over again a few imprecise statements I made in a casual comment.

                  Just ridiculous crxp.

                8. S. Morse, boy, anyone that understands litigation knows the crxp you are spewing is nonsense.

                  I can only image your purpose to yap on and on like this is to confuse the issues.

                  Newman was right in what she said. Nothing you said takes away from it. You are just a ridiculous yapper.

                9. S. Morse, yapper boy, recognize that not only was the issue raised in the response whether it was prior art or not but that patent judges evaluated this issue at institution as they had to come to the conclusion that it was more than 50% likely that it was prior art.

                  Yappy little boy trying to blow smoke to make it impossible to discuss issues on a blog.

                  You do remind me of the Marxists that are running the D party right now. You just think you are right in face of counter-evidence and reality. Get your hands out of you pants yappy boy.

                10. Those attorneys who actually do trial work at the PTAB will be delighted to hear that a trial is mere “fluff.”

                  Not An Examination.

                11. Not sure if my pal wants to explore the ramifications of his (multiple times) stressed point of “Not an examination.”

                  For example, the law provides for a patent grant for examined claims (including the presence and level of the presumption of validity — the same presumption as a stick in the bundle of property rights that suffers a taking at the post-grant institution decision).

                  GIVEN that the IPR is “Not an Examination!”… by what mechanism is ANY change in claim (and thus new claim scope, and thus new ‘metes and bounds’ of any resultant patent rights actually established under the law?

                  This is a MAJOR ‘oopsie’ and extremely poor writing of the AIA that is (at least one of) the elephant in the room.

    2. 10.2

      The statute contemplated that institution would be a policy/regulations based decision separate from the merits. “The Director” shall decide institution, and “shall prescribe regulations”, and “shall consider the effect on the economy” and the “integrity of the patent system”.

      After that, the “Director shall” determine that the petition demonstrates a reasonable likelihood of unpatentability.

      THEN it goes to the PTAB for a trial on the grounds raised in the petition. There is no prohibition new arguments and evidence once the PTAB has jurisdiction.

      Institution was not intended to be a mini-trial on the merits. And it certainly wasn’t supposed to be conducted by the PTAB. That has been a huge corruption of the structure created by Congress.

      The current system was set up by Google and Director Kappos in 2012 and did not follow the statute passed by Congress. It has created chaos and corruption. It has destroyed the integrity of the patent system and with it our ability to compete globally in innovation.

      1. 9.1.1

        My, aren’t we getting a little touchy, Ben?

        Clearly, there is a difference between a post that happens to be along a different topic and another post that attempts to obfuscate an ongoing topic.

        YOUR posts fall into the obfuscation category, given that YOU are attempting a ‘What-aboutism’ (that also happens to F A 1 L miserably).

  3. 8

    Again, this blog is being overrun with paid anti-patent judicial activists or those that don’t want the patent right and have little regard for a fair dialogue.

    Newman’s arguments include:

    “The separation of investigative and decisional functions is necessary, the
    Court explained, lest the agency decision “lie under the suspicion of being rationalizations of the preliminary findings which the commission, in the role of prosecutor, presented to itself.” Id. at 42 (internal quotation marks
    omitted). ”

    She also says that the intent of the AIA is clear to separate the institution decision from the adjudicative function.

    The amount of misinformation below is stunning. One example, is a yap boy saying that the issues are different at institution than adjudicating the IPR, which of course is ridiculous as the petition to institute is the primary document for the IPR.

    1. 8.1

      Yes Night Writer,
      Did you know my identity thief that Dudas and Doll used has no power over anything she has stolen either because she used my real birth certificate

    2. 8.2

      Ben being an examiner and consistently being anti-patent belies his own assertions of a pro-patent systematic examination bias.

      It also simply flies in the face of history (the embedded ‘just say no’ and Reject Reject Reject and the plethora of shadow programs of which SAWS was but one AND the implicit assertion that pro-patent people WANT rubber stamp allowances).

      Which makes Malcolm’s appearance and thrust about inte11ectual honesty so amusing.

    3. 8.3

      “The separation of investigative and decisional functions is necessary, the
      Court explained, lest the agency decision “lie under the suspicion of being rationalizations of the preliminary findings which the commission, in the role of prosecutor, presented to itself.”

      The PTAB (and the BPAI before it) has always had both an investigative and a decisional function. That is to say, it was always able both to adjudicate disputes over an examiner’s rejection and to make its own rejections. Why has this never bothered anyone before?

      1. 8.3.1

        Oh, it’s always bothered me that the PTAB make new rejections in ex parte appeals. That is, when they are unable to do anything to salvage the pitifully insufficient rejections made by the Examiner.
        My understanding is that the vast majority of APJs of the BPAI came up the ranks from the Examiner Corps so the inherent pro-Examiner bias built into the PTAB from its start is understandable given that history, and I’m not aware of any studies breaking down the background and experience of all the PTAB judges so patent practitioners can have an understanding of how many current PTAB judges have drafted and prosecuted patent applications prior to joining the PTAB.

        1. 8.3.1.1

          As I have noted, the old BPAI judges were once known as Super Examiners.

          This was expressly NOT to be the case with the PTAB.

          Greg’s ‘choice’ is not a fully honest one (and that’s being generous).

  4. 7

    Judge Newman is correct as usual. Even when I disagree with one of Newman’s opinions, I always read it carefully knowing she is usually more discerning than everyone (including me). As to compensating judges for IPRs, I think the majority are living in an ivory tower. When I was an examiner, the count production quota drove everything including quality examination into the ground because examiners were regularly getting fired for not meeting the insane production requirements. If the administrative judges are getting pushed financially by the compensation system then it is impossible for a fair hearing on the merits. I hope the appellant appeals to the US Supreme Court on this one because this goes to the heart of the administrative judicial system.

    1. 7.1

      I certainly agree that one should always take Judge Newman seriously, and that she is right far more often than she is wrong. Here, I think that Judge Newman’s concurrence was a mixed bag.

      She really wrote two concurrences: one on the appointments clause issue; and another on the due process issue. Her arguments about the appointments clause issue give me pause. Arthrex did not really engage with the question of how we should think about political accountability with regard to the Director’s unreviewable discretion to deny institution. That power is not really implicated in this case, but Judge Newman is not obviously wrong to suggest that there might be something Constitutionally unsupportable here.

      The due process question, however, is really much simpler than she is making it, and the majority clearly got this part right.

      The CAFC was not adjudicating an issue of first impression here. The Court has already delineated the border between structural bias that creates a due process problem and structural bias that does not. The only question in front of the CAFC was whether this case was more like Tumey, or more like Dugan. The majority is clearly correct that this case is more like Dugan.

      Judge Newman never bothers to address this question, but really—for the CAFC—this is the only question that matters. All of the various policy arguments that Judge Newman advances—no matter how rhetorically fine—are simply irrelevant to the only question that the CAFC has the authority to tackle.

    2. 7.2

      JR, a lot of what goes on at the PTAB is driven by financial concerns. One of the biggest is claim amendments. There are no extra points for that so the patent judges don’t want them and make it very hard to amend the claims.

      Greg, Newman did bring up that the AIA says that the director shall decide whether to institute and that the patent judges are to adjudicate validity. She points out this is against the intent of the AIA to have turned both over to the patent judges.

      1. 7.2.1

        Slightly different perspective – but a significant processing one:

        The post grant mechanisms are NOT examination or examination-based.

        This means that things such as claim amendments or other similar changes that might occur in the normal course of examination simply are not properly in context in the post grant review.

        Think of it this way: examination is the Congressionally set process of determining a proper metes and bounds of a claimed innovation.

        The post grant review is about tearing up the fence posts of what was previously set out as the limits of those metes and bounds.

        There is nothing in the post grant review mechanism about ANY replacement examination to reset what would be proper metes and bounds.

        The PTAB is expressly NOT there to be any type of ‘super-examiner’ (and that is what the OLD proclivity was). The PTAB is supposed to be a NEUTRAL arbitrator between the patent owner and the patent challenger.

        Nothing more.
        Nothing less.

        Examination (and thus, amendments, which of necessity, must be examined since the very basis of the prior examination has been attacked) is simply NOT a part of the post grant mechanism — at a meaningful level.

        Sure, the word “amendment” may be provided for, but this certainly does not mean that the post grant mechanism thought through what would be needed to make such be a meaningful item. It is well known that the AIA was extremely poorly written, and this is but one of the examples of that.

      2. 7.2.2

        [T]he AIA says that the director shall decide whether to institute and that the patent judges are to adjudicate validity. She points out this is against the intent of the AIA to have turned both over to the patent judges.

        Sure, that argument was made—shoehorned into the “due process” challenge. Unfortunately for the appellant, this is pretty weak sauce as a “due process” concern. Due process = notice + opportunity to be heard in front of a neutral arbiter. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Notwithstanding the appellant’s bellyaching, due process does not require two separate neutral arbiters. The fact that the same APJs decide both the institution and final stages just is not a “due process” problem.

        Really, this challenge amounts to an “ultra vires” challenge, although it was not honest enough to say so outright. No matter, however, because the majority saw the challenge for what it was, and rightly noted that the ultra vires argument was settled in Ethicon. As the Ethicon court already noted, Title 35 is littered with “the Director shall”s, and it simply could not be possible for one Director to do all of those things himself or herself. Indeed, it is quite ridiculous to imagine that the Director should personally decide every institution decision, just as it would be absurd to imagine the Director should personally “develop an electronic system for the filing and processing of patent and trademark applications” (Pub. L. 107–273, div. C, title III, §13103). Clearly, in context “the Director” means a responsible party to whom the Director delegates the specified task and whom the Director supervises.

        Nothing about the present arrangement is the leastwise improper from either a due process or an ultra vires perspective. Judge Newman’s suggestions to the contrary were much the less convincing part of her concurrence.

        1. 7.2.2.1

          Greg’s got the better read here.

          (egads, me agreeing with both Shifty and Greg on the same day)

            1. 7.2.2.1.1.1

              Again — just because you do not agree does not mean that the other person is weak or needs to grow a pair.

              For example, in this thread alone I provide many distinctions. Feel free to actually engage on the merits of any of them.

        2. 7.2.2.2

          The point is that the patent judges are not a “neutral arbiter” because they have a motive to institute to get more points because once they have spent the time to institute they have done most of the work to either invalidate or not.

          The petition is the primary document in both cases.

          Nice try Greg but you mischaracterized what Newman said.

          1. 7.2.2.2.1

            [Administrative p]atent judges are not a “neutral arbiter” because they have a motive to institute to get more points…

            Do they have such a motivation? I have certainly read a lot of allegations to that effect, but I have not seen much actual evidence on point. Here is what we know, from Ron Katznelson’s very informative publication on the subject (URL below]:

            The number of Decisional Unit (DU) credits that APJs earn depends on the type of proceeding and the decision made… [A] decision in an ex parte appeal is worth 1.1 DU (1.5 DU for a decision involving 35 U.S.C. § 101); credit for a decision on institution of an IPR is 5.5 DU; Final Written Decision in IPR, 6.5 DU; institution of PGR/CBM, 6 DU; and Final Written Decision in PGR/CBM is worth 7.5 DU.

            The institution process takes six months start-to-finish, while a trial, once instituted, takes one year. That is to say, if APJ #1 chooses to institute, she will receive 12 DUs for 18 months of work.

            Meanwhile, APJ #2 chooses not to institute a different petition, so he will receive 5.5 DUs for 6 months of work, at which point #2’s docket will remain free to take on another institution decision (good for another 5.5 DUs) over the following 6 months. If that second petition is also denied, then #2’s docket remains free to take on yet another institution petition.

            At the end of 18 months, APJ1 will have earned 12 DUs, while APJ2 will have earned 16.5. Explain to me again how this amounts to a structural bias in favor of institution.

            link to poseidon01.ssrn.com

            1. 7.2.2.2.1.1

              Naïvely modeling an institution as taking 6 months of work and a FWD as taking 12 months of work is begging the question. The issue is: based on the actual effort necessary to complete these tasks, whether or not APJs are incentivized towards institutions.

              1. 7.2.2.2.1.1.1

                Very true. In order to know whether there is a structural bias here, we would need to know what effort is required for each of these tasks, what control each APJ has over what sorts of cases are assigned, and a host of other factors that we cannot learn merely from Appendix C of the Katznelson paper (interesting and informative though Appendix C might be).

                NW, however, is proposing a naïve model, in which an APJ is biased to institute to get the extra 6.5 DUs. I was merely illustrating that one can just as plausibly gin up a naïve model in which the bias is actually to deny institution.

                How the actual self-interest calculus runs is largely opaque to any but an actual APJ. I would, of course, love to hear some inside accounts in that respect, but I doubt that any such are forthcoming. Short of that sort of evidence, however, good luck to the appellant here (or the US Inventor amici) proving their due process challenge.

                1. How the self-interest calculus runs is it that it matters not one whit whether we grant or deny. We just pick up the next case because there is plenty of work for everybody.

                2. That has to be the most PollyAnna and unrealistic view of any bureaucratic environment that I have ever seen — the very opposite of a “self-interest” driver.

                3. S. Morse >>How the self-interest calculus runs is it that it matters not one whit whether we grant or deny. We just pick up the next case because there is plenty of work for everybody.

                  You are so FOS. 1) I know that you don’t take things off the docket as there is a person that assigns the IPRs and that getting similar IPRs can save a massive amount of work.

                  2) The point of Newman is that all the issues have already been visited in the primary documents during institution so the patent judge has already determined that they are more likely than not indicate that the claims are invalid. So doing both the institution decision and invalidity decision biases the fact finder.

                  Never ending crxp from you.

                4. The point of Newman is that all the issues have already been visited in the primary documents during institution so the patent judge has already determined that they are more likely than not indicate that the claims are invalid. So doing both the institution decision and invalidity decision biases the fact finder.

                  How does this introduce bias? The implication is that we would only have an unbiased conclusion if one panel decides institution and a second, independent panel delivers the final decision.

                  Imagine, however, that the invalidity contest were to play out in an Art. III court, instead of the PTAB. Would you call the process “biased” because all issues are decided by a single jury? Does anyone suppose that two separate juries are necessary in order for the trial to be regarded as “unbiased”?

                  The PTAB panel that delivers the final decision is not “biased” because it also decided the institution. That panel is simply well informed about the record, which is not the same thing as “bias.”

                5. Gregg,

                  For your analogy to work, you would need to have the juries deciding whether or not a case could even be filed.

  5. 6

    “On the financial incentives, the Patentee argued that institution fees are 24% of PTAB collections, and the PTAB Chief Judge participates in the budget process. But, the Court explained that there was no structural incentive for judges to institute trials for purposes of funding the agency

    …if the Court found otherwise, the same argument can be made for patent maintenance fees. Maintenance fees are the overwhelming bulk of USPTO funding. Thus, by the same token, one could argue that the 70-80% (historical) patent grant rate is inflated by examiners for job security.”

    link to patentspostgrant.com

    1. 6.1

      You do realize that Maintenance fees are set higher in order to dissuade people from holding onto their (un-worked) patents as opposed to generating income from the office, right?

      It’s long been a part of the limited fee-shifting ability of the Office (which also goes to the point that fees charged for searching are “low”).

      You seem so absolutely convinced that you need to speak on topics that you just do not understand.

      1. 6.1.1

        anon, Ben is deflecting or blowing smoke. He knows that there are some structural issues with IPRs and he is trying to change the topic.

        1. 6.1.1.1

          That’s right folks.

          Pay no attention to structural biases that advantage applicants. We only have time to discuss structural biases that disadvantage patentees.

          Why don’t you just come out and say that your only principle is “whatever is good for applicants is right, and whatever is bad for applicants is wrong”? It’d be less dishonest than your current dance.

          1. 6.1.1.1.1

            More smoke Ben. The issue in this case is IPRs.

            We talk about the structural problems with examination often in terms of patent quality.

          2. 6.1.1.1.2

            My dear Ben, surely you aren’t you aren’t accusing the Bobbsy Twins of being intellectually dishonest shills…?

            Oh, the incivility ….

            1. 6.1.1.1.2.1

              Night Writer’s arguments are his own — and Ben apparently studied your tactic of one-bucketing.

              But regardless of whether or not Ben’s attempted “What-aboutism” is solely a distraction, he is simply wrong about what he is attempting to say.

              And I love the irony of you Malcolm slinking out of your muck to make a comment on inte11ectual honesty.

              That’s Rich.

  6. 5

    A big issue that Newman raises is that the same patent judges that determine whether to institute are the same that decide the case and that this is against the intent of the AIA where the director is to decide whether to institute and then patent judges determine whether the claims are invalid.

    This does provide an incentive to institute as you examine the case and determine whether to institute and get points and then decide the case to get points and you get efficiency as you have already examined the case to determine to institute the case.

    There are other issues raised by Newman that have merit.

    Newman as is usual is right. Obama really destroyed the CAFC by stacking it with anti-patent judicial activists judges.

    1. 5.1

      “This does provide an incentive to institute as you examine the case and determine whether to institute and get points and then decide the case to get points and you get efficiency as you have already examined the case to determine to institute the case.”

      Absolutely.

      Query for people more familiar with IPRs:

      Does this point-bias only favor institution, or does it also favor invalidation?

      In other words, does the work that an APJ does to process an institution facilitate the work to process an invalidation? Or is the final decision step so different that once the case is instituted, there is no “efficiency” favoring either outcome?

      1. 5.1.1

        The proceedings and built-in bias favors invalidation. After institution patents are presumed invalid and the burden shifts to patent owner. It’s like an application, with opposition, wheren the first office action is the final disposition of the patent. The judges are told their duty is to come up with an argument to invalidate. An instituted patent is equivalent to being on death row – 84% chance of death.

        They get the same number of points for FWD. The problem is the incentive to institute/convict innocent suspects.

        1. 5.1.1.1

          I don’t know if it is still the case but it used to be to write a dissent (either way) that you had to have the chief judge’s permission or you would not get points.

          Think about that one.

          1. 5.1.1.1.1

            That was put in in the name of “efficiency,” and there has NOT been a public retraction of that protocol.

      2. 5.1.2

        Re: “does the work that an APJ [3 APJs] does to process an institution facilitate the work to process an invalidation?”
        Yes. Unlike DC patent litigation, an IPR trial is limited to 102 or 104 evaluation of only the prior art and declarations against the contested claims which are cited in the petition itself. So yes, it would be duplicative and inefficient to have two different sets of PTO employees, one set to make IPR institution threshold decisions and another set to supervise trials and conduct final hearings and write decisions on the same prior art, declarations, issues, and claims.
        [BTW, the Post-Grant Blog again notes that the the APJ bonus system this subject case’s argument was largely based on was eliminated in 2016.]

      3. 5.1.3

        Absolutely? What absolute nonsense. The count is the same whether you institute or you deny. It’s not an examination. It is Not An Examination. The institution phase is based on a different record and a different standard of proof from the final decision. Whether you institute or you deny trial, you just pick up the next case (there are plenty in the queue).

        1. 5.1.3.1

          S. Morse, “The institution phase is based on a different record and a different standard of proof from the final decision. Whether you institute or you deny trial, you just pick up the next case (there are plenty in the queue).”

          Complete BS. Total lie. The record is not different. In fact, the record is the same. Once you read and understand the invalidity arguments for institution those are the same arguments and same brief for invalidity.

          Stop making things up.

        2. 5.1.3.2

          The institution phase is based on a different record and a different standard of proof from the final decision.

          Did you leave out a “not” there (i.e., “… is not based on a different record…”)? The point you are trying to make (the same count whether you institute or deny) seems at odds with your statements above. I wonder if this is one of those omitted-“not” typos that totally change the meaning of the sentence.

          1. 5.1.3.2.1

            Actually, I meant what I said as explained at comment 10 above. It’s a simple matter to look at a post-grant file on PTAB E2E and determine the papers and exhibits that formed the record at institution and those that were added during trial (usually, many more). The Fed. Cir. tends to give more weight to the PTABs’ evaluation of expert testimony (and cross-examination) than to any findings about the prior art by a panel. Not An Examination.

            1. 5.1.3.2.1.3

              S. Morse, the record is not different.

              It is at best supplemented and the main document is the petition.

              And any expert affidavits/testimony is merely to supplement the petition.

              So why are you trying to make these out to be different when they aren’t different?

              1. 5.1.3.2.1.3.1

                20% different IS different.

                That you seem so desperate to think otherwise is not a good look for you.

      4. 5.1.4

        BTW, you are correct that the rules grease the skids for allowance in the examining corps. Been that way since at least Sputnik.

      1. 5.2.2

        Dmitry, I am aware of this. I’ve gone over this. The Obama anti-patent judicial activists have taken over the thinking of the CAFC. Taranto is the intellectual center of the CAFC. Six of the twelve active judges (non-senior status ) are Obama appointments.

        1. 5.2.2.1

          NW: “These Obama-judges are really messing up patents!”

          Dmitry: “None of these judges are Obama appointed.”

          NW: “I said “These Obama-judges are really messing up patents!!!” *assorted feral grunting noises as foam appears at edge of mouth*

    2. 5.3

      PTAB “examines” the “case” and determines whether to institute? You’ve never been within 1000 yards of an IPR, have you?

      1. 5.3.1

        The large percentages of Petitions for IPRs that are denied IPR institution as a result of being initially examined are of public record and regularly published for anyone interested in facts.

      2. 5.3.2

        S. Morse >>PTAB “examines” the “case” and determines whether to institute? You’ve never been within 1000 yards of an IPR, have you?

        So what do you think is wrong with that? In fact that is exactly what happens.

        1. 5.3.2.1

          I think that he got hung up on the word ‘examine.’

          Given that our shifting historical-pseudonymed friend has given repeated clues that he was employed by the patent office prior to his retirement, the word ‘examine’ WILL trigger him (even though it was pretty obvious that you intended the meaning of ‘judge’).

          Our pal though has never answered the question of just what his role was at the Office.

          Since he seems to lack a basis of technical understanding, my thoughts have been a clerical position, possibly to one of the higher-ups (based on his over-inflated view of his logical abilities).

  7. 4

    Judge Newman is absolutely correct. I don’t know about the APJs but, as a former Examiner, I can tell you that Examiners are always mindful about making the production they need to make in order to receive a top performance review or bonus. There is a reason that Examiners are forbidden from practicing before their old art units for two years after they leave the office. Why is this not applicable to APJs? There is definitely the potential, if not actual, appearance of bias.

    1. 4.1

      ? This case was not about what APJs can do after they retire, and APJs [who are all attorneys]would not be ethically able to argue at the PTAB any case they were previously involved in at the PTAB. That was always the case, even for interferences.

      1. 4.1.1

        The case was about the potential, if not actual, appearance of bias. You appear to be missing the forest for all the trees.

    2. 4.2

      “I can tell you that Examiners are always mindful about making the production they need to make in order to receive a top performance review or bonus.”

      Amen.

      My question is, why does structural bias only matter when it disfavors patentees?

      1. 4.2.1

        With counts for both allow and reject, why in the world do you continue your slipshod ‘logic’ and attempts to portray the examiner position as necessitating a “pro-patent” view?

        1. 4.2.1.1

          I’ll reply here for any lurkers who might be genuinely confused.

          Writing up an allowance takes less time and effort than writing a rejection, writing a new rejection with new art, and then writing an examiners amendment.

          But writing an allowance gets the same amount of examiner credit as writing a rejection, writing a new rejection with new art, and then writing an examiners amendment.

          And so to spell it out for the most obtuse among us…

          When people get paid the same for doing an easy thing as a hard thing, those people are biased towards the easy thing.

          1. 4.2.1.1.1

            Tell me about those quality aspects you are always whining about there…

            (talk about dishonest posting — that would be you, Ben)

            By the by — would love to see Prof Crouch do a study on any trends in first action allowances.

          2. 4.2.1.1.2

            “Writing up an allowance takes less time and effort than writing a rejection, writing a new rejection with new art, and then writing an examiners amendment.”

            That is true, but it takes even less time to make a Final Office Action that is a copy-and-paste of the Non-Final, gives a blanket statement in the Response to Arguments that the applicant’s arguments were considered but not persuasive, and then lets the applicant decide if they want to file an RCE, file an appeal, or abandon the application. If they go the appeal route, then the same arguments are re-hashed in the Examiner’s Answer (for which a count is received), and there is no negative impact on the Examiner if the PTAB reverses the rejections (heck, the PTAB may reverse the Examiner’s rejections but throw in their own new grounds of rejection!). If an RCE is filed, then more counts go to the Examiner for the RCE and the next Non-Final Office Action.
            Until an Examiner and their Art Unit SPE experience negative consequences, nothing will ever change.

            1. 4.2.1.1.2.2

              I think what you wrote could mislead the unfamiliar on how many counts are issues… in terms of counts, an allowance is equal to non-final+final+examiner’s-answer+RCE.

              It seems like you are saying that doing a bad job can make the effort for a rejection-through-RCE equivalent to an allowance.

              So, as best I can tell, your point is that there is no structural bias towards allowance for bad examiners. This argument does not address the issue of a good examiner who may be influenced by structural bias of the count system.

              If that’s your point, I don’t disagree. But I don’t think it makes sense to design a system which assumes examiners are all bad actors. Average humans? Sure. But not deliberately-sending-out-errors bad actors.

              And if you were being consistent and assuming that APJs were bad actors, you would conclude that APJs would just churn out unreviewable non-institution decisions. In which case, the structural bias of the PTAB point system is irrelevant.

              1. 4.2.1.1.2.2.1

                You just want to keep on posting inanities….

                APJs would just churn out unreviewable non-institution decisions

                No.

                Not even close.

              2. 4.2.1.1.2.2.2

                “an allowance is equal to non-final+final+examiner’s-answer+RCE”

                That is correct.

                “So, as best I can tell, your point is that there is no structural bias towards allowance for bad examiners. ”

                It truly is a great argument. lol

                “This argument does not address the issue of a good examiner who may be influenced by structural bias of the count system.”

                Which according to NWPA, is like 80%+ of the examiners in the useful arts (although it is reversed according to him in the non-useful arts).

              3. 4.2.1.1.2.2.3

                “And if you were being consistent and assuming that APJs were bad actors, you would conclude that APJs would just churn out unreviewable non-institution decisions. ”

                I don’t think that is correct bro. I think they’re saying that they would issue bad decisions after institution decision being made to institute. Or something like that.

                1. But why?

                  If you’re a truly bad faith APJ, why would you bother instituting any IPR? Yes, you can get something analogous to double credit for institution+final-decision, but that also subject you to review. What’s better?? 2x credit for y work, or 1x credit for 0.1y work? A smart, bad actor would just crush tons of institution decisions and would not have to worry at all about the CAFC slapping slapping them down.

                2. If you’re a truly bad faith APJ, why would you bother instituting any IPR?

                  Asked and answered — but Ben, you are far too invested in your own preconceived notions to be able to recognize this.

                3. “If you’re a truly bad faith APJ, why would you bother instituting any IPR?”

                  Make-work? Or because you think said patent is bad? Etc. etc.

                  ” but that also subject you to review”

                  Meh.

                  “A smart, bad actor would just crush tons of institution decisions and would not have to worry at all about the CAFC slapping slapping them down.”

                  That also might start looking a little weird.

            2. 4.2.1.1.2.3

              “but it takes even less time to make a Final Office Action that is a copy-and-paste of the Non-Final, gives a blanket statement in the Response to Arguments that the applicant’s arguments were considered but not persuasive”

              This happens like 2x a year. Even when I reapply art previously used I usually have to change the rejection all around or add new 103’s.

              “are re-hashed in the Examiner’s Answer (for which a count is received)”

              Unless that is new I don’t recall getting a count for an examiner’s answer. It might be the last .5 counts, I haven’t written one in like a decade so I can’t remember.

              “and there is no negative impact on the Examiner if the PTAB reverses the rejections (heck, the PTAB may reverse the Examiner’s rejections but throw in their own new grounds of rejection!)”

              You do know most don’t make it through pre-appeal right?

              “If an RCE is filed, then more counts go to the Examiner for the RCE and the next Non-Final Office Action.”

              Pretty sure no more counts go to the examiner if they already got all the counts for the overall case at time of examiner’s Answer.

              Going through writing an examiner’s answer and all that is literally the least efficient use of an examiner’s time imaginable. Even with copy/paste, you’ve also got to usually have an interview with pre-appeal person, do all the scheduling etc. Ridiculous to think this is like raking in the counts/OT.

              “Until an Examiner and their Art Unit SPE experience negative consequences, nothing will ever change.”

              As just explained, it already mostly is, and you don’t even explain what you want to “change”.

              1. 4.2.1.1.2.3.1

                6,

                This happens like 2x a year. Even when I reapply art previously used I usually have to change the rejection all around or add new 103’s.

                Second time in a short while that your answer (perhaps geared to what YOU would do) absolutely misses the point about what the VAST majority of examiners do.

                As to the rest of your reply, it seems that YOU are quite unsure of how the count system works.

                That’s more than a bit odd, eh?

                I think that we may have covered this previously, but is the full count system published somewhere?

                1. “Second time in a short while that your answer (perhaps geared to what YOU would do) absolutely misses the point about what the VAST majority of examiners do.”

                  I’m just not sure how they are able to do this unless the applicant is messing up the amendment.

                  “As to the rest of your reply, it seems that YOU are quite unsure of how the count system works.”

                  Well I wasn’t 100% because I haven’t bothered with those parts of it in a decade, but ben confirms my original suspicion.

                  “I think that we may have covered this previously, but is the full count system published somewhere?”

                  Yeah I have a copy of it in my email even if you guys don’t have it on the outside. But I think it should be in the PAP on popa’s website.

                2. 6, while there are a few memos available on the website, the main ones are “internal documents” only.

      2. 4.2.2

        You’re most likely not a patentee yet when you’re dealing with Examiners (unless you’re in Reexam or Reissue). I’m sure arguments can be made on both sides as to whether the current production system at the USPTO favors or disfavors applicants. Examiners interested in doing a quality examination will do a quality examination regardless. Those who aren’t interested don’t care to begin with. Same applies to those doing prosecution. Some will put the same level of quality into an application regardless of how much they are being paid for that particular application, and others will take the attitude that they are only going to give the client the bare minimum if they feel that is only what the client was willing to pay for. Ethical issues abound.

        1. 4.2.2.1

          Ok. But if your system is designed to rely on ideal actors ignoring the influences of structural bias…

          …why does the structural bias in the APJ system matter?

          Keep in mind, I’m not saying it doesn’t matter! I just think it matters in both contexts, rather than just one.

        2. 4.2.2.2

          “Examiners interested in doing a quality examination will do a quality examination regardless”

          You say that, but the time constraints grow by the day. They are, by all accounts, getting quite acute in my art. I would tend to agree.

          1. 4.2.2.2.1

            LOL – there you go again, making YOUR internal metrics be a problem for my clients.

            You do realize that such is simply not professional, right?

          2. 4.2.2.2.2

            In my day, VOT (“voluntary overtime” for those who weren’t Examiners during the late 20th Century) was pretty common for Examiners. Though back then we had our own offices and no one tracking whether or not we were online and doing work. You made your bi-week production, and if you needed to do some VOT to make that happen, that’s what you did. There were Examiners practically living in their offices at the end of the quarters or fiscal year so they would make bonus.

            1. 4.2.2.2.2.1

              “In my day, VOT (“voluntary overtime” for those who weren’t Examiners during the late 20th Century) was pretty common for Examiners. ”

              See it’s a long running problem. And I’d be more or less fine with it if the whole system wasn’t designed to literally discourage work. It’s like “here’s some cases, all of them will take you longer than we’re going to give you to do a good job. Plz do a good job. ” like wtf bro.

              1. 4.2.2.2.2.1.1

                6,

                Now you really are stepping into a deep pile.

                Let’s take a number of views here.

                First, you are (yet again) trying to make an internal metrics item – a YOU problem — into being a problem for my clients.

                On that aspect, you (again) want to make it seem like the poor examiner has no choice but to NOT be professional about doing a good job.

                Let me ask a question that I have asked many times previously:
                Why do you have a union?

                If you (the Royal you) are faced with a situation that you cannot do a good job – as you appear to claim – why the H has your union approved these conditions?

                You have suggested in the past that the Union does not really do anything, so why have it at all – especially in the context of the present discussion, that Union agrees to the very thing (in essence, you – and again the Royal you – AGREE to do a job at the time rates indicated).

                YOU sign up for this.
                YOU don’t get to whine about something that you have agreed to.
                Don’t like it? Don’t sign up for it.

                Second, let’s (again) visit this notion of Examination Quality, and how the Office portrays that its front end Examination Quality is at world-record-breaking high levels.

                You want to take the position on this topic along the lines of “of course, we are (most) all doing a way above average job. Even setting aside the duplicity of using the term “above average” in a way that defies what the plain meaning of the term indicates, your whining about ‘not enough time’ necessarily F A 1 L S if that internal metric is as you want to accept it to be, as that metric indicates that not only do YOU have enough time, YOU are doing exceptionally well with the time that you already have.

                YOU cannot have it both ways in having high quality (doing a GREAT job), but not enough time to actually do a GOOD job.

                1. “On that aspect, you (again) want to make it seem like the poor examiner has no choice but to NOT be professional about doing a good job.”

                  Not technically true brosef. The examiner can work 10 hr days and weekends and use leave to mess around with the production system. Like me and others. There is, obviously, a choice.

                  “Why do you have a union?”

                  I already told you, it is a historical anachronism. I’m not sure why you keep asking that.

                  “why the H has your union approved these conditions?”

                  Already discussed that with you at length, not sure why you keep asking about it. They have no choice, and no say so in those “conditions” (which are really just the “performance measures”, officially, but which you and I know have an effect on the real life conditions, it’s legal slight of hand). It’s all unilaterally decided by mgmt.

                  “in essence, you – and again the Royal you – AGREE to do a job at the time rates indicated”

                  That’s not actually the case tho. That’s not how it goes down irl. How it goes down is, mgmt unilaterally states that this and this and this is how you will be performance measured/graded. They never ask anything like: “do you agree to do this for us in xyz time?” etc.

                  “so why have it at all”

                  It’s a public union, so mandated by congress iirc, although it could be dissolved by vote and reformed iirc. But, again, the unions these days are just mainly for the actual “working conditions” as in, do you have a clean office to work in, do you get sick days, do you get benes, do you get time off for xyz and a million other things like that. They get no say in the “performance measures” or hiring/firing. I’m not sure why you don’t understand this.

                  “YOU don’t get to whine about something that you have agreed to”

                  I never actually did agree to it tho, nobody does. But you’re going to bs around this and pretend that I/we did/do. I tell them every yearly review now explicitly that I will give it a shot, but I make no promises, and make them the offer to make all cases fit in those times, and thus for them to have pretty numbers on production, or in the alternate I offer that I can do a good job. The boss man knows what is going on with the production nums, and how long it takes to actually do a good job on a case, and make a good rejection n write it up pretty like. And he always chooses to just have the good job done rather than have all cases fit the times he wants them done in. And it is agreed that I will do that. That is the actual agreement. He knows what is up, he can’t change it either.

                  “as that metric indicates that not only do YOU have enough time, YOU are doing exceptionally well with the time that you already have.”

                  Um no, that metric does not indicate that at all. Derp derp. It only indicates that the product, once completed in over the amount of time given, so as to have done a good job, is a quality end product that is mailed to the applicant. If we were building chairs instead of office actions, then that metric measures how “pretty the chairs are once they are completed”, not “how pretty they are once completed vs the time it took to complete them”.

                  “YOU cannot have it both ways in having high quality (doing a GREAT job), but not enough time to actually do a GOOD job.”

                  Sure we can, that’s what the VOT and weekends and taking “time off” when you’re actually just working is all about derp derp. That is the whole point of the discussion above. How do you not understand this? Are you re tar ded?

                2. “The examiner can work 10 hr days and weekends and use leave to mess around with the production system”

                  True. I once had a bi-week where I completed several first actions on the merits (1 count each), but had 10 or so second office actions (at that time, no count) that I had to get done in order to make positive workflow (and avoid negative workflow). After the bi-week was over, my SPE indicated on the top of my report that my 98% production was not acceptable.
                  A few bi-weeks later, I did several first actions on the merits, two second actions, had one allowance, and was off on vacation (actual vacation) for the bulk of that bi-week. My SPE was exceedingly pleased that my production came in at about 110% for that bi-week.

                  I worked my behind off and got 98%. I took vacation and got 110%. There is something very wrong with a production system that produces such results.

                  When an Examiner digs deep into their docket to find a case with less than 10 claims to examine in order to get out an “easy” office action and make production, is that still referred to as “raping your docket”?

  8. 3

    As noted in recent blogs, there are now at least three pending APA suits against the PTO alleging that PTAB APJs are abusing their discretionary authority to deny many IPR institutions that should have been declared. This is obviously contrary to the [unsuccessful] attorney allegations here* arguing a strong PTAB APJ incentive to declare more IPR institutions. It is surprising that this clearly inconsistent litigation headed for the Fed. Cir. has not been noted.
    *Raised for the first time on appeal, hence the PTO objects that it was denied the opportunity to factually rebut these allegations.

    1. 3.1

      P.S. I cannot resist noting that a former legal mentor of mine would have said something like this: Note that this case is being sent back to the PTAB to make the actual decision on the merits of the IPR. Do you think you really did your clients a favor by an appeal attacking the integrity of the judges who are going to decide your case?

      1. 3.1.1

        Do you think you really did your clients a favor by an appeal attacking the integrity of the judges who are going to decide your case?

        What an Fn cheerleader you are.

        The correct answer is that if a proper legal argument for impropriety can be advanced – you advance it.

        Period.

        If the judges are pristine, then your advancing will have NO effect. The snide takeaway in your comment is the implication that the judges will punish you — which only proves the point that they should be challenged.

        Newman — once again — has the better position.

    2. 3.2

      Wait, do you mean to tell me that attorneys raise arguments in lawsuits not based on a principled opinion of right and wrong, but on whether the argument supports an outcome favorable to their client?

  9. 2

    We need the FBI and IRS to investigate all the APJ’s and their families to see if anyone of them has been compensated by any means other than their salaries for canceling patents. Starting with Ms Lee!

  10. 1

    Examiners can either immediately get 2 counts for an allowance, or they can get 2 counts by writing a first office action, writing a final office action which accounts for arguments and amendments, and then waiting some months possibly needing to write an examiner’s amendment.

    If the APJ point scheme creates a pro-institution bias, then the examiner count scheme must create a pro-allowance bias.

    1. 1.2

      If you are a PTAB APJ and you cancel patents litigated against Apple, you get hired by Apple with a million-dollar salary package & stock options.

      In another case if you are an examiner and you allow a patent for a no name small company / inventor after narrowing it 3 times, you get to go back to your cube and examine another patent from another no name small inventor.

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