EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
`November 16, 2017
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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE
` PPAC QUARTERLY MEETING
` November 9, 2017
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` Transcribed by DONNETTE COWGILL
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`CSI GLOBAL DEPOSITION SERVICES
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
`November 16, 2017
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` P R O C E E D I N G S
` JUDGE RUSCHKE: I want to talk a
`little bit about expanded panel, since that has
`gotten a fair amount of discussion out there in the
`public.
` I think a number of stakeholders are --
`are unaware that we have a large number of SOPs,
`standard operating procedures, that are on our
`website. And SOP 1 is how we -- it's not just
`expanded panels; it's how we panel cases generally.
`But there is a large section there on expanded panel
`practice within the PTAB.
` The chief judge, myself, has discretion to
`expanded a panel, but there are four specific
`reasons at the present time as to why we would
`expand a panel. One is that it's an issue of
`exceptional importance, the second one is that it's
`to maintain uniformity of board decisions, and the
`last two are essentially written requests from the
`commissioner who have an issue of first impression,
`or where it seems as if in the public interest, they
`should -- we -- we should not be following a prior
`board decision.
` So it's really these first two categories
`that I think are important to look at: issue of
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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`exceptional importance, uniformity of board
`decisions. And one thing that we're doing right
`now, that we haven't necessarily done previously, is
`that when we do expand the panel, we are expanding
`it and providing the reasons for it. And I think
`that is something that you'll see in every single
`one of our expanded panel decisions.
` Again, it's a suggestion for panel
`expansion. It can frankly be done by anyone, the
`judge, the merits panel, an interlocutory panel,
`applicant or patent owner, and a party in an inter
`partes reexam, interference, or trial.
` I think this is an interesting slide.
`This is actually done rarely, and it actually says
`"rare" in the SOP. I expanded the panels in only
`four cases in 2017, and in those situations the vote
`remained unanimous.
` And some people must have -- and so the
`reason that I expanded the panel, and you can see
`here I point to the second bullet point down there,
`General Plastic. That's the one that ultimately
`went into a presidential designation. The reason we
`expand it, which is mainly adding the chief judge
`and Scott, the deputy chief judge, into the
`situation is to emphasize this is an important case.
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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`This is where the jurisprudence of the board is
`going.
` And in the case of General Plastic, we
`expanded the panel, we made it informative, and we
`made it presidential. That could be a trend. I'll
`just -- I'm just saying, so I'll keep -- so if you
`see that happening, that's -- this is what -- this
`is what we're doing. And we will explain it into
`the -- the opinion as to why we expanded the panel.
` UNIDENTIFIED MALE: David -- all
`right. More questions from the audience --
` JUDGE RUSCHKE: Sure.
` UNIDENTIFIED MALE: -- on -- on panel
`expansion, three-part question: One is when and how
`would parties be informed that the panel will be
`expanded, when and how. Two, how are the additional
`judges assigned, by whom And three, who decides the
`size of the expanded panel?
` JUDGE RUSCHKE: So right now, the SOP
`or one, for expanded panels, does not require prior
`notice to the parties for expansion. So typically
`when the -- the panel has been expanded, the parties
`will find out in the decision when it issues at that
`point. In terms of the number, I think that was the
`third part.
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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` UNIDENTIFIED MALE: How are they --
`how are the additional judges assigned and by whom?
` JUDGE RUSCHKE: Yeah, so those are
`all decided by the discretion of the chief judge.
`It's actually sort of laid out in -- in the SOP as
`well. Again, we have in the past, not since I've
`been chief, we have expanded it with other judges.
`Sometimes it has been expanded with the -- the
`leadership of the board.
` As you saw there, I've only expanded it in
`situations where I've added Scott and myself to
`emphasize a unanimous decision below. But it is
`within my discretion. As to the numbers, it's
`recommended to be an odd number, but that also is in
`the discretion of the chief judge. And as you can
`see there, we have gone from 3-0 to 5-0 and
`sometimes from 5-0 to 7-0.
` I did want to, as I mentioned earlier at
`the agenda, at -- at the beginning of the -- of the
`hour, we are officially releasing on our website
`today "SOP 9 on Remands." This has been a while
`coming, and I wanted to thank a number of the judges
`who have worked relentlessly on this.
` The thing that we wanted to do primarily
`was to provide guidance to the judges, as well as
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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`provide guidance to the public on how to -- how to
`talk to your clients about what you can expect if
`there is a -- a remand from the federal circuit back
`to the board.
` The key, which we've kind of been saying
`all along, but now it's officially in the SOP, which
`is posted on our website as of today, the goal, of
`course, is issuing a remand decision in a timely
`manner. That's within six months from the mandate,
`not from the decision of the Fifth Circuit, from the
`mandate.
` I see some external data showing that
`we're doing quite well with respect to the six-month
`goal, with a few significant exceptions, but
`primarily that seems to be working quite well. What
`we're doing right now is when anytime we get a
`remand from the Fifth Circuit, we want to make sure
`that we are as -- as religious as possible, making
`sure that it's not going to go back up and have it
`come down again.
` As a result of that, we find that we're
`meeting with the panels, the chief and the deputy
`chief, or our delegates, meet with them. Many times
`there really isn't an issue going out there, but if
`there is significant issues we want to know about
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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`it. And this provides a very nice mechanism for the
`panels, letting us know that there is some issues
`that could potentially be valuable and be
`interesting out there.
` Probably the best guidance that we have
`are these: We've established default procedures for
`trial and appeal. This isn't just AIA trials. This
`is also for appeal remand scenarios. So essentially
`what we did is we looked at all of the remand cases
`and saw are there essentially similar scenarios
`where we would allow briefing, additional evidence,
`or oral argument? And you can see it summarized in
`the table. This is taken directly out of the SOP.
`This is for AIA trial work.
` You see that there's essentially six
`categories of remands coming back from the federal
`circuit: Claim interpretation, we got that wrong.
`We failed to consider evidence. We didn't provide
`an adequate explanation. We applied the law
`inappropriately. Number five is very important.
`That, of course, is due process, denial of the
`Administrative Procedure Act rights, and improper
`consideration of the arguments.
` You'll see here generally that other than
`in number five, the APA, where that situation is an
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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`opportunity where we may allow additional -- an --
`and even oral argument. In all of the other
`situations, you always get briefing, that's almost a
`certainty, but it's going to be an uphill battle for
`you to get additional evidence and an oral argument
`in. We just don't see those situations happening.
`And this, again, is based on the remand decisions
`that we have to date.
` And then the -- there is also a default
`appeal guidance which I -- again is on this slide.
`And again, there is these six scenarios that we're
`looking at and again focusing on the fifth row
`there, where, again, whether it's involving APA or
`denial of due process. In that situations we will
`go back in the form of a new ground of rejection
`where we -- where we reopen prosecution and
`reexamination. So I commend everybody to the
`website. Those are the primary highlights of our
`SOP 9 that I wanted to make sure everybody was aware
`of today.
` Last but not least, this is a -- a slide
`that's somewhat loaded. There's a lot of things
`here. These are obviously things that are on our
`minds. I know they were addressed earlier today, so
`perhaps I -- I don't need to necessarily go into
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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`that as well, but obviously Oil States and SAS being
`argued on the 27th, that's something that's
`obviously very important to us.
` And as I said multiple times before, I
`never thought in a million years that a year after
`taking this job I would have to try to come up with
`operational parameters for a situation where in Oil
`States, a third of our jurisdiction might be taken
`away or, if SAS, it could be doubled in -- in terms
`of workload. Who knows?
` So we're coming up with a lot of scenarios
`and -- and plans, again, trying to figure how we're
`going to operationally keep the board moving. The
`decisions, though, obviously of great interest to
`us, and we also cannot forget that Wi-Fi One is
`still pending at the fed circuit in an en banc
`decision.
` I want to spend a little bit of time on
`the other case, on the very low -- the last bullet
`there that's still pending before PTAB. Of course,
`I can't say too much about it. This is the one
`that's gotten a lot of press where Allergan entered
`into an arrangement with the Saint Regis Mohawk
`Tribe. That has been ongoing briefing. It's --
`raises the issue of tribal immunity.
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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` If you've been following board cases,
`about six or seven months ago we entered the -- the
`arena of sovereign immunity via state sovereign
`immunity under the 11th Amendment with a case
`involving the University of Florida. We've had a
`few cases since then and our jurisprudence
`surrounding the state sovereign immunity doctrines
`are evolving.
` This is a different case now involving
`tribal immunity. And as I said, we are involved
`with the briefing on whether the tribe -- on the
`effect of the assignment of Allergan, the patent
`owner, to the tribe and its effect on tribal
`immunity in the -- essentially the moving forward
`with the trial proceedings from -- from the
`beginning.
` The important thing that I think is out
`there that I think everybody has seen -- it's gotten
`a fair amount of press as well -- is that in an
`order within this case we authorized briefing for
`amicus briefs by particular folks requesting it. In
`addition, we authorized briefings for any
`interest -- interested amicus out there.
` So the briefing period has been opened.
`We are allowed briefing through December 1st,
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`essentially a four-week period. Briefs are limited
`to about 15 pages, after which the petitioner and
`the tribe will be -- have an opportunity to file a
`response in two weeks to those amicus briefs that
`are filed.
` We encourage amicus to -- amici to please
`try to coordinate and if there's a way that you can
`file joint briefs, please do. I know that there's
`a lot of policy issues out there. There might be
`some repetition. If there's a lot of repetition you
`might not have your brief read as in depthly (sic)
`as you might like, so coordination is key.
` I personally would like to see one thing.
`Again, this is an issue, a first impression for the
`board, so one thing it is a friend of the board, a
`brief that we're asking for, so any help on case
`law, interpretation of statutes, contrast and
`comparison to state sovereign immunity would be
`welcomed by the board. So please feel free to use
`this time period effectively. We -- we welcome your
`input.
` One thing that we have to deal with is
`that this is actually the very first time that the
`board has authorized the filing of amicus briefs in
`any of our cases. We actually do not have an IT
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`system that can accommodate that at the present
`time. So what you need to do is to send an email
`directly to trials, t-r-i-a-l-s, @uspto.gov. It's
`that simple. If you have an issue, please call our
`general number. That's on the website but it's
`trials@uspto.gov. That's where to send the amicus
`briefs, and you have until December 1st.
` THE CHAIR: David, I have a question
`from the audience too. Why is PTAB allowing amicus
`briefs regarding the motion to dismiss filed by the
`Saint Regis Mohawk Tribe based on sovereign
`immunity, but not for any of the 17 motions to
`dismiss based on sovereign immunity filed by state
`universities? Can you answer that?
` JUDGE RUSCHKE: I'm not aware that --
`that in the state cases there were a lot of amicus
`briefs requested in those cases. So I would have to
`go back, Marylee, and check and see what happened.
`But again, if there were -- if those -- if that did
`occur -- I am not saying that they didn't occur; I'm
`just not aware that we had a -- a need for the
`amicus briefs in those situations.
` THE CHAIR: I'm just -- I'm just
`reading the questions.
` JUDGE RUSCHKE: Yeah, I -- no, it's
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`good. I -- actually, I think that's interesting. I
`would have to go back and see, you know, if there
`were a lot of requests in those. Sometimes I think
`amicus requests are denied if the parties can't
`agree or if the parties feel that there's going to
`be some sort of delay in the proceedings. And so I
`would imagine that panels might say no to amicus
`briefs if the parties can't agree to it. But I -- I
`don't know if that's the case in those situations.
` MS. MAR-SPINOLA: David, can you give
`a little bit more guidance on the issues that you'd
`like to have addressed in the amicus briefs?
` JUDGE RUSCHKE: So I -- I actually
`commend everybody to the order itself, which is in
`this case. Let me see if I can pull it up here.
`I'm not sure we provide specific guidance in the
`order. We actually don't provide additional
`guidance in terms of the specific issues, Julie,
`that we -- that we'd like to see. But I think
`again, in this situation, there's a large number of
`issues out there.
` So again, when I -- one thing I think
`would be helpful is to compare and contrast
`sovereign immunity under the 11th Amendment versus
`tribal immunity. That would be particularly useful
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`to us. I think the whole issue of the viability and
`appropriateness of the contractual arrangement
`between the patent owner and the tribe and any
`indication of that appropriateness would be helpful
`to us.
` That has obviously gotten a lot of play
`two days -- two days ago on Capitol Hill in -- in a
`-- an opinion written by Judge Bryson as well. So
`there's a lot of those sorts of issues. And maybe
`that is something that I think would be helpful when
`you ask about the range of issues.
` The hearing on the Hill two days ago
`raised a number of issues, a lot of policy issues
`there to begin with. And again, not that we don't
`want to hear policy, but if -- please try not to be
`repetitive of those issues because I'm sure there's
`going to be a lot of overlap there. But again, if
`we can try to see why it necessarily applies in this
`situation I think is really important.
` One other issue might be waiver. In what
`situations is sovereign immunity waived and does it
`differ between constitutional 11th Amendment
`sovereign immunity or tribal immunity? I think that
`would be an important issue to be briefed as well.
` MS. MAR-SPINOLA: And one that I
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`would offer is, who has jurisdiction over the
`validity of patents once they've been assigned to a
`tribe?
` JUDGE RUSCHKE: I -- I think that's a
`-- that's an -- a really interesting question. I
`haven't seen that out there, but I do think that
`that's something we'd like to see as well. This --
`and this is an interesting issue and I -- I think
`one of the things that, as with AIA for the last
`five years it seems like, you never know what issues
`are going to be coming up next.
` So not that this is going to be happening
`on a regular basis, but I think the board will be
`looking strongly at these sorts of issues of first
`impression applied in a patent setting atypically
`where we will be asking for amicus briefs to help us
`out.
` THE CHAIR: Any other questions for
`David? Okay.
` Seeing none, David, thank you. That
`was --
` JUDGE RUSCHKE: You're welcome.
` THE CHAIR: -- a great way. I
`commend the subcommittee of covering a lot of very
`specific issues that have been raised to us through
`
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`PPAC, and we appreciate the depth and detail that
`you provided. And -- and we also appreciate the
`fact that you always come back. We ask you, you
`know, to jump through this hoop and you jump forward
`and back and then through again, and so we
`appreciate your patience with us and -- but I think
`the user committee really values the input and so --
`and we need to work on that manual part for you,
`so --
` JUDGE RUSCHKE: Appreciate that.
` THE CHAIR: -- yeah.
` JUDGE RUSCHKE: We -- we also --
`thank you for that, Marylee. We also want to --
`appreciate the interactions we have with the
`subcommittee. It's a -- we're really excited about
`some of the new initiatives that we're doing in
`collaboration with the subcommittee. Those are
`starting -- hopefully maybe next time we can spend a
`little bit of time talking about those.
` But I -- I do want to compliment Scott and
`Jana Kengola (phonetic) who always attend with me,
`and they -- they write down scrupulous notes at the
`subcommittee and here to make sure that we're
`responding to -- to the questions you have.
` MR. THURLOW: Just -- just very
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`quickly on a timing issue. With the one case, this
`sovereign immunity, not all of us have followed it,
`so when is -- when is the -- the decision going to
`come down to institute, I guess.
` JUDGE RUSCHKE: This is the tribal --
`you mean the tribal immunity?
` MR. THURLOW: Yeah, yeah. Tribal,
`I'm sorry. Yeah.
` JUDGE RUSCHKE: Do you know if --
` MR. BOALICK: So it's --- so -- so,
`Peter, it's already in progress. In fact, this
`motion came a couple of weeks before the oral
`hearing. However, it is a joined case, so the panel
`has extended the -- the deadline because of its
`power, you know, by the statute. It's -- the final
`decision will be out no later than April and the
`order that David referred to has the date. I forgot
`exactly which date in April, but no later than April
`you'll see the final decision.
` Of course the -- that could include a
`decision on the motion combined with the final
`decision or a decision on the motion could come down
`and then proceed with the oral hearing and all. The
`oral hearing has currently been postponed while the
`motion is under consideration.
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` MR. THURLOW: That's it.
` THE CHAIR: Okay. Yes?
` MR. THURLOW: Yeah.
` THE CHAIR: Gentlemen, thank you.
` Thank you so much.
` (End of Proceeding.)
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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` CERTIFICATION
` TO THE VIDEOTAPE TRANSCRIPTION OF
` UNITED STATES PATENT AND TRADEMARK OFFICE
` EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE
` PPAC QUARTERLY MEETING
` November 9, 2017
`
` I, DONNETTE COWGILL, do hereby
`certify that I have listened to and transcribed the
`above-referenced audiotape to the best of my
`ability.
` I FURTHER CERTIFY that the foregoing
`pages comprise a true and correct computer
`transcription by me of said audiotape.
` Subscribed and sworn to by me on this
`the 17th day of November, 2017.
` ______________________
` Donnette Cowgill
`
`CSI Global Deposition Services
`Firm Registration No. 526
`Corporate Plaza 1/Suite 152
`4950 N. O'Connor Rd.
`Irving, Texas 75062-2778
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETINGEXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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`A
`ability
`19:11
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`12:1
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`adding 3:23
`addition
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`addressed
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`adequate
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`Administ...
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`Allergan
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`Amendment
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`12:22 13:4
`13:7,12
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`
`amount 2:4
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`applied 7:19
`15:15
`applies
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`appreciate
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`appropri...
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`atypically
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`audiotape
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`authorized
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`
`12:15,21
`B
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`12:18 13:2
`16:3,5
`banc 9:16
`based 8:7
`12:11,13
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`12:10,17
`12:22 13:8
`13:12
`15:16
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`Bryson 14:8
`bullet 3:20
`9:19
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`C
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`4:3 9:19
`10:4,9,20
`11:16 13:9
`13:15 17:1
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`3:16 7:9
`10:1,6
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`categories
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`certainty
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`19:12
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`16:11 18:2
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`2:13 3:23
`3:24 5:4,7
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`clients 6:2
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`CSI GLOBAL DEPOSITION SERVICESCSI GLOBAL DEPOSITION SERVICES
`
`972-719-5000972-719-5000
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`20
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`come 6:20
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
`November 16, 2017
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`15:24
`Cowgill 1:25
`19:8,18
`CSI 19:20
`currently
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`D
`D 2:1
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`date 8:8
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`David 1:13
`4:10 12:8
`13:10
`15:19,20
`17:17 19:4
`day 19:16
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`decision
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`17:3,16,19
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`decisions
`2:18 3:2,7
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`default 7:6
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`delay 13:6
`delegates
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`denial 7:21
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`Deposition
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`depth 16:1
`depthly
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`designation
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`discretion
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`doctrines
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`E
`E 2:1,1
`earlier 5:18
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`FURTHER
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
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`imagine 13:7
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`lot 8:22
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`maintain
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`manner 6:9
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`never 9:5
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`number 2:6,7
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`EXCERPTS OF CHIEF JUDGE DAVID RUSCHKE PPAC QUARTERLY MEETING
`November 16, 2017
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`O 2:1
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`oral 7:12
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