I was able to find the article written by the same person I posted last time. Someone who specializes on intellectual property/patent.
This one is from Friday events.
Voip-Pal: Apple Waited Too Long to Complain About Our Innocent Conduct
WRITTEN BY: Scott Graham
Seldom has a reader so precisely captured the gist of one of my articles as Haynes and Boone partner Russ Emerson has with the above tweet. The clash between Apple and Voip-Pal.com over a remarkable series of ex parte contacts could be subtitled “Days of Our IPRs.” Or maybe “The Bold and the Broadest Reasonable.”
On Friday we got the latest chapter as Voip-Pal told its side of the story to the Patent Trial and Appeal Board. Part of it is laughable; part of it definitely has some merit. I’ll get to that in a second. Most significant: The company fessed up to one of Apple’s primary allegations—namely that former Voip-Pal CEO Thomas Sawyer was in fact coordinating his ex parte lobbying campaign with Voip-Pal management. The company even corrected a September press release that said Sawyer had been acting independently.
To briefly recap, Voip-Pal sued Apple, AT&T and others for infringing a patent related to voice-over-internet protocol, demanding $2.8 billion in damages. Apple responded with an IPR, and a three-judge panel of the PTAB instituted proceedings, saying it appeared more likely than not the patent was invalid.
That set off Sawyer, who began writing PTAB Chief Judge David Ruschke, PTO chief Joseph Matal and Commerce Secretary Wilbur Ross, complaining at length about PTAB bias against patent owners generally and by the three judges in his case specifically. The PTAB assigned three three new judges to Apple’s IPR, without explaining why. Following a full trial, they disagreed with the original panel and ruled for Voip-Pal. Now Apple is crying bloody murder as only Apple can, demanding that the PTAB rip up the judgment as punishment for Voip-Pal’s egregious misconduct.
Voip-Pal’s first argument is that yes there was ex parte contact, but there was absolutely nothing improper about it. PTAB rules bar ex parte contact over “substantive issues,” but permit “reference” to a pending case “in support of a general proposition” such as systemic problems.
That’s all Voip-Pal did, Kevin Malek of Malek Moss writes in Voip-Pal’s opposition. “All of the Sawyer Letters illustrated systemic concerns about potential unfairness and bias of the Inter Partes Review system,” he writes. The letters “scrupulously avoid discussion of all ‘substantive issues‘ (prior art, non-obviousness or antedating).”
In fact, that’s why Sawyer consulted with Voip-Pal on the letters: “Patent Owner’s participation ensured that the technical merits were not discussed.”
That’s the laughable part. Sawyer’s first letter to Ruschke, issued May 1, begins, “re: Inter Partes Review of Apple v. Voip-Pal.com, IPR2016-00198 [and 2016-01201].” Thus, the entire six-page, single-space letter—which is copied to President Trump, Chief Justice John Roberts, and the three PTAB judges originally assigned to the panel—is about the Apple v. Voip-Pal IPR. And while it is true Sawyer doesn’t address the merits of the case, he points to potential conflicts of interests and the high individual cancellation rates of each of three panel judges. Subsequent letters call explicitly for the dismissal of the IPR as a sanction for the judges’ alleged bias.
But then Malek raises what could be the winning argument and/or the path of least resistance for PTAB. Sawyer also copied the May 1 letter to U.S. District Judge Gloria Navarro of Nevada, whose clerk posted them to the docket in the parties’ infringement case. So Apple’s known about at least some of the ex parte contact since May.
“If [Apple] truly believed the Sawyer Letters had impacted this proceeding, it could have (and would have) done something” before the PTAB ruled on the merits in November, Malek writes. “To grant petitioner a remedy now would reward petitioner for waiting and doing nothing.”
Apple has a couple of weeks to file its reply. So we’ll probably have to wait till February to find out Who Shot IPR.
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