Opinion:Good.response..Succinct,.to.the.point. . . .
. .
and.addresses.and.destroys.all.the.arguments Apple gave for the rehearing request.
The PTAB will look mighty foolish if they go ahead with granting any rehearing.
Prediction - Apple's request gets DENIED.
MOST PERTINENT PASSAGES
Had any of the Sawyer Letters addressed the merits of these proceedings, refuted prior art references, or discussed the patent’s claims, that would have been improper. But that is not the case here.
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And in analogous settings where recusals were sought following ex parte communications with judges or their staff, courts have declined to grant relief especially where the communications did not affect the merits of the decision. See, e.g., In re Adbox, Inc., 234 Fed. Appx. 420, 421 (9th Cir. 2007) (denying motion for recusal despite “several ex parte contacts,” as there was “no evidence that those communications affected the bankruptcy judge’s rulings”)
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Petitioner doesn’t identify what, exactly, gives the “appearance” of bias.
Petitioner assumes that the mere fact of the Sawyer Letters creates an appearance of bias—an unsupported and patronizing view that denigrates the competence and independence of the Board. Courts have rejected this very view, refusing to infer bias solely due to the fact of ex parte communication.
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Petitioner’s overwhelming reliance on accusations of bias and prejudice in this Motion belie its claims that Petitioner’s loss on the merits is due to the Sawyer Letters. But the content of the Sawyer Letters was irrelevant to the substantive issues before the Panel, and even if Petitioner had made a timely protest (which it deliberately chose not to do), that would not explain how Petitioner’s technical submissions would have been any different. The same flawed arguments and evidence could not have led to a different decision on the merits. Thus, Petitioner cannot substantiate any of its allegations of unfairness or of an improper result.
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Petitioner’s Motion for Sanctions is separately barred because Petitioner was aware of the alleged ex parte communications, chose to do nothing, and waited until after final judgment. It is axiomatic that a request for sanctions must be made promptly after the alleged misconduct in order to be actionable.
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That the late procedural posture of this case leaves only certain remedies available to Petitioner, such as judgment in its favor or a re-trial (see Paper 55 at 15), is a circumstance caused by Petitioner’s own failures. To grant Petitioner a remedy now would reward Petitioner for waiting and doing nothing.
"GOOD ARTISTS COPY, GREAT ARTISTS STEAL. WE HAVE ALWAYS BEEN SHAMELESS ABOUT STEALING GREAT IDEAS" STEVE JOBS:
