Look at VirnetX (VHC) they were attacked not 8 times...but 40 + times at IPR. Until the right filing landed the right PTAB Board. The PTAB stacks the board
"The case where this nearly unbelievable admission was made during oral argument was Yissum Research Development Co. v. Sony Corp. (Fed. Cir. 2015). The pertinent part of the oral argument, which 717 has conveniently provided here, reads as follows:
USPTO: And, there’s really only one outlier decision, the SkyHawke decision, and there are over twenty decisions involving joinder where the –- (PP Comment: Joinder is where a Time barred Plaintiff like Apple and ATT can ride on to someone who is not. Notice the 20 Joinder decisions? That's how they do it, how they get around the Time Bar.)
Judge Taranto: And, anytime there has been a seeming other-outlier you’ve engaged the power to reconfigure the panel so as to get the result you want?
USPTO: Yes, your Honor.
Judge Taranto: And, you don’t see a problem with that?
USPTO: Your Honor, the Director is trying to ensure that her policy position is being enforced by the panels.
Judge Taranto: The Director is not given adjudicatory authority, right, under § 6 of the statute that gives it to the Board?
USPTO: Right. To clarify, the Director is a member of the Board. But, your Honor is correct –
Judge Taranto: But after the panel is chosen, I’m not sure I see the authority there to engage in case specific re-adjudication from the Director after the panel has been selected.
USPTO: That’s correct, once the panel has been set, it has the adjudicatory authority and the –
Judge Taranto: Until, in your view, it’s reset by adding a few members who will come out the other way?
USPTO: That’s correct, your Honor. We believe that’s what Alappat holds.
So the USPTO admits that the Director does not have statutory authority to adjudicate an issue after a panel has been chosen, but argues that the Director can assert administrative authority to intentionally select Judges that will rule diametrically opposite to those Judges originally assigned to the case, thereby stacking any panel the Director chooses to achieve the result the Director wants in any case.
The USPTO also made a similar, although not so direct, admission during oral argument in Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., which was decided by the Federal Circuit on Tuesday, August 22, 2017. In his concurring opinion Judge Dyk (joined by Judge Wallach) mentioned concern with the USPTO stacking PTAB panels, but said the Court did not need to reach the issue. “While we recognize the importance of achieving uniformity in PTO decisions, we question whether the practice of expanding panels where the PTO is dissatisfied with a panel’s earlier decision is the appropriate mechanism of achieving the desired uniformity,” Dyk wrote.
These admissions by the USPTO are both stunning and scandalous for at least two reasons.
First, although APJs of the Patent Trial and Appeal Board (PTAB) are not Administrative Law Judges (ALJs), the Administrative Procedures Act (APA) does apply to PTAB proceedings. Indeed, the Federal Circuit has applied the APA to PTAB proceedings strictly. The importance of this is simple. The APA demands decisional independence, which obviously is not happening when the Director of the USPTO can stack a panel to achieve a particular desired outcome."
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