Dr. Thomas E. Sawyer
`3626 E. Little Cottonwood Lane
`
`Sandy, Utah 84092
`
`May 1,2017
`
`Hon. David P. Ruschke
`
`Chief Judge, Patent Trial and Appeal Board
`P.O. Box 1450
`
`Alexandria, VA 22313-1450
`
`Re: Inter Partes Review Apple v Voip-Pal.com Inc, Case IPR2016-01198 Patent 9,179,005 BZ;
`Case IPR2016-01201 Patent 8,542,815 B2
`
`Dear Judge Ruschke,
`
`My professional life has been an integration of government and private sector work. I have had
`the unique opportunity to serve as senior advisor to four U.S. Presidents, Nixon, Ford, Reagan,
`and Bush Senior. Past technical and managerial experience included serving as Chairman of the
`Board of Directors and CEO of Voip-Pal.com Inc., as well as Director of Special Operations (see
`attached resume).
`
`Although I no longer have a formal role with Voip-Pal, I am a shareholder and as such, have
`become increasingly concerned about the prospects of Voip-Pal receiving a fair and impartial
`inter partes review (IPR) by the currently assigned USPTO panel of administrative law judges.
`
`The applicable section if the U.S. Code 28 USC §455 provides, in part:
`
`(a) Anyjustice, judge, or magistratejudge of the United States shall disqualify himself in
`any proceeding in which his impartiality might reasonably be questioned.
`(b) He shall also disqualify himself in the following circumstances...
`(2) Where in private practice he served as lawyer in the matter in controversy, or a
`lawyer with whom he previously practiced law served during such association as
`a lawyer concerning the matter, or thejudge or such lawyer has been a material
`witness concerning it...
`(4) He knows that he, individually or as a fiduciary, or his spouse or minor child
`residing in his household, has a financial interest in the subject matter in
`controversy or in a party to the proceeding, or any other interest that could be
`substantially affected by the outcome of the proceeding;
`(5) He or his spouse, or a person within the third degree of relationship to either
`of them, or the spouse of such a person...
`(iii) Is known by the judge to have an interest that could be substantially
`affected by the outcome of the proceeding;
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`(c) A judge should inform himself about his personal and fiduciary financial interests,
`and make a reasonable effort to inform himself about the personal financial interests of
`his spouse and minor children residing in his household...
`(d) For the purposes of this section the following words or phrases shall have the
`meaning indicated. . .
`(4) “financial interest" means ownership of a legal or equitable interest, however
`small, or a relationship as director, adviser, or other active participant in the
`affairs of a party.
`
`The focus of the statute is not on whether there is actual bias, but on avoiding the potential for
`bias when “impartiality might reasonably be questioned.” Consistent with that high standard, the
`“Judicial Conference (of the United States) policy now requires each court to enter judges’
`financial conflicts into a database that stores case information, including parties and attorneys.
`Judges, according to the policy, must provide the court with a list of their financial conflicts.”
`(O’Brien, R., Weir, K., & Young, C. (2014, May 1). Revealed: Federal judges guilty of owning stock in
`corporations they ruled on. Occupy. com. Retrieved from httpflwww.occupy.com/article/revealed-federal-judges-
`guitry-owning-stock-comrations-they-ruled#sthash.dUEde16JJSNrn4sdpbs)
`
`If there is such a list for the Patent and Trademark Trial and Appeal Board, that information has
`not been shared. Further, in response to a request for such records in Re: USPTO FOIA Request
`re Leader Technologies, Inc. v. Facebook, Inc., U.S. Pat No. 7,139,761 and 3rd Reexam No.
`951001,26l, the United States Patent and Trademark Office of the General Counsel took the
`following position in an August 7, 2013 letter:
`
`The financial disclosures are withheld in full pursuant to Exemption (b)(6) of the FOIA,
`which permits the withholding of "personnel and medical files and similar files the
`disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
`5 U.S.C. § 552(b)(6). (Retrieved from h
`s:r'i’www.lbcoveru .comfdocsr‘lih
`IEOIS-DS-OT-Parent-
`
`
`Office-FOIA-Res onse-REDACTED-CON FLICTS- LOGS-re- Leader-v- Facebook- F-l 3-00218-A u —7-
`
`2013.9df)
`
`
`
`As a consequence, it is impossible to get financial information about the three members of the
`panel in the current IRB, nor is it possible to request financial information concerning any
`potential bias in the administration of thisjudicial system, because Under Secretary of
`Commerce for Intellectual Property and Director of the United States Patent and Trademark
`Office, Michelle K. Lee, was not required to file any financial information at the time of her
`appointment, because the U.S. Senate had her answer a "Questionnaire for Non-
`Judicial Nominees."
`(Retrieved from h
`sn’fwwwfudici
`
`
`.senate. ov/imolmediafdoc/Lee‘l’fifl uestionnaire‘l’o20Final. df)
`
`
`
`
`Based on information that is available, it can be determined that two of the assigned judges either
`represented Apple (the Petitioner) or worked in a law firm which has represented Apple in patent
`litigation. Judge Stacy Margolies represented Apple in a 201] patent litigation case and Judge
`Barbara Benoit was a principal at Fish & Richardson, a law firm which has represented Apple in
`patent litigation, including a case before the Patent Trial and Appeal Board (PTAB). The third
`judge, Lynne Pettigrew, was employed by AT&T for a period of eight years. While AT&T is not
`directly related to the petitioner, they are a named party in a lawsuit filed by Voip-Pal pertaining
`to the patents currently being reviewed in the IPR. Thus it appears that each of the judges may
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`Page Is
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`have a potential bias, but there is no way of ascertaining whether the problem is an appearance or
`a reality.
`
`There is also a potential of bias on the part of the administrator, Under Secretary Lee, who, prior
`to becoming the Director of the USPTO, was Deputy General Counsel and Head of Patents and
`Patent Strategy for Google, which is also a defendant in the federal court action that is
`considering these patents. Given her position as the head of the US PTO, which now includes the
`judicial arm, the PTAB, I request that she be asked to provide the financial disclosures that are
`contemplated by 28 USC§455 and that she consider whether “[sjhe, individually or as a
`fiduciary, or [her] spouse or minor child residing in h[er] household, has a financial interest in
`the subject matter in controversy or in a party to the proceeding, or any other interest that could
`be substantially affected by the outcome of the proceeding.” For example, it seems likely that
`her long tenure at Google resulted in her owning a number of Google shares andr'or options,
`which may create a circumstance where she should “disqualify h[er] self (acting as an
`administrator over a judicial system) in any proceeding in which h[er] impartiality might
`reasonably be questioned.”
`
`A further and more fimdamental bias during her administration is suggested by the fact that the
`PTAB has invalidated a record number of patents, many of them developed by individuals or
`small American inventors. Each patent, prior to the PTAB invalidation, had been awarded after
`a careful review by patent examiners, who come from the same system with the same criteria as
`the PTAB judges. An indication of the “administrative headwind” that Director Lee’s has
`created, was her recent statement, “Our stakeholders share my belief, and that of my USPTO
`colleagues, that there is a cost to society when this agency issues a patent that should not
`issue...” Are the “colleagues” and “stakeholders” the large Silicon Valley companies that have
`largely been the beneficiaries of the PTAB’s decisions? Or just the members of the “death
`squad,” a characterization embraced by former PTAB Chief Judge James Smith in a speech in
`which he described it as "unfortunate language," but in some ways it adequately described the
`mission Congress gave the board under the America Invents Act.
`(Davis, R. (2014, August 14). PTAB’s ‘Death Squad‘ label not totally off-base, chief says. Retrieved from
`h
`5:!!www.law360.corruarticlesi567550! tab-s-death-s uad-label-not-totalIv-otT-base-chief-sa s
`
`
`
`The concerns about the “impartiality” of the process seem quite reasonable when considering the
`seemingly excessive rate of institution and cancellation by two of these judges, Barbara Benoit
`and Lynne Pettigrew. Both are among the judges with the highest institution rates at 89% and
`84% respectively, and Judge Lynne Pettigrew has a cancellation rate of 97 %.
`(Graham, 5. & Shuchman, L. (2015, Fall). The Brainy Bunch. Intellectual Property: An ALM Supplement, 6.
`Retrieved from h
`sztlwwwro es ra .com/~r'media/FilesflarticlesflOl SlSe {ember/’20] 509! l PTAB Re rintashx
`
`
`
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`Those numbers are disconcerting in that each IPR involves one or more patents and raises the
`question whether any patent owner who has spent years conducting R&D and tens of thousands
`of dollars, if not millions, bringing their inventions and innovations to fruition will receive fair
`and impartial consideration; certainly not by a panel ofj udges who appear eager to cancel claims
`and patents which have been properly examined and thoroughly vetted and granted by competent
`USPTO examiners. Voip-Pal and other companies like it are generally funded by thousands of
`hard working and often small shareholders who deserve fair and impartial treatment. As a
`shareholder, I seek a fair review on the merits of each patent case. Your attention to this matter is
`greatly appreciated.
`
`

`

`Page I4
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`Personal Observation
`
`Further substantiating the concerns are PTAB’s own statistics. Since its formation in 2012, 69%
`of trials resulted in all instituted claims being rendered un-patentable (an additional 15% resulted
`in some instituted claims rendered un-patentable). A total of 84% of trials resulted in the
`cancellation of claims.
`
`By PTAB’S own published numbers they are disallowing the vast majority of contested patents
`which had been properly and carefully reviewed by qualified and competent examiners. AS the
`“death squad" nickname embraced by Judge Smith suggests, it seems the primary purpose of the
`PTAB is to cancel properly issued patents.
`(Retrieved from htlpszflwww.uspto.govlsitesfdefaulfifilesa’documentslaia statistichanuary20] Tpd_f)
`
`o
`
`It takes a company or an individual approximately 4 to 6 years for a patent to be allowed
`and issued by the USPTO, which can then be cancelled by the PTAB, an element within
`the USPTO.
`Is the USPTO telling the world it does not trust the diligent work of its own
`experienced, expert examiners?
`
`0 America was built upon individual’s efforts that were encouraged and rewarded as a
`result of their scientific and technological achievements. The American economic engine
`is fueled by innovation which is being stifled by the USPTO’s PTAB. In my opinion the
`USPTO/PTAB is discouraging inventors when they should be doing exactly the opposite.
`
`A Legal and Moral Issue
`
`The USPTO charges fees when an inventor applies for a patent. Years are spent in the process of
`responding to the examiner and following established Patent Office rules. A patent is allowed
`and issued only after a rigorous review that determines that it is valid and non-obvious, and
`does not infringe prior art of an issued patent.
`(Davis, R. (2017, April 24) Fed. Circ. Reverses PTAB nix of Synopsys Circuit patent. Law 3 60. Retrieved fi‘om
`hrtpsflwww . law360.com/artic lesf9l 643 l {fed-circ-reverses-ptab-nix-of—synopsys-c ircu it-palent
`Scheller, B.M. & Ferraro, V.M. {2017, April 25). Federal Circuit to PTAB: No short cuts allowed. The National
`Law Review. Retrieved from httg:.-’fwww.nallawreview.comfaniclelfederal-circuit-lo~p_tab-nowshort-cuts-allowed)
`
`The same USPTO, through the PTAB process, has set up a different standard that has resulted in
`84% of all patent prosecutions through the [PR procedure becoming disallowed and cancelled.
`Fees have been paid by the inventor to the same office for both the issuance and the cancellation
`of their patent. One side takes 4 to 6 years to issue a patent while the other side strikes down the
`same patent in one year or less. Both entities are part of the same government agency and yet
`each has its own set of rules which are contradictory. The question must be asked, “Does this
`process reflect the ‘fundamental fairness” upon which our laws are based?”
`
`An anticompetitive patent process that favors large politically powerful software and hardware
`companies, while excluding the small company or individual inventor, brooks the potential not
`only for a reduction in patent development, but long-term monopolistic practices that will thwart
`our national creativity and the strength of our economy which has thrived under free market and
`fair trading principles. The pushback is already gaining steam in the European Union, where
`several countries have filed or are considering suits against large American software companies.
`(Couturier, K. (2016. Dec. 20). How Europe is going after Apple, Google, and other US. tech giants. New York
`Times. Retrieved from https:lfwww.nytimes.comfinteractivef20 [ 5104f} 3{technologvfhow-europe-is-going-after—us-
`
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`Page [5
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`tech-giantshtml; Manj 00, F. {2017, Jan. 4). Tech giants seem invincible. That worries lawmakers. New York Times.
`Retrieved from ht
`szh’wwwn imes.comx’20]7i0lr’04i’technolo 'a’techs-next-battle-the-fi'i
`tfuI-five-vs-
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`lawmakershtml}
`
`In looking at the emerging practices of the USPTOIPTAB as anti-competitive, reconsider again
`the current cancellation rates of the PTAB judges that are canceling an average of 84% of issued
`claims, with some judges reaching as high as 97%. USPTO examiners are amongst the most
`highly skilled and competent in the entire world. The patents granted by such examiners should
`be looked at as a resource, not a problem. The PTAB has tarnished the USPTO’S reputation for
`fairness and impartiality. Now, rather than being at the forefront of innovation and patent
`protection the United States has now fallen behind Australia, Canada, Europe and even China in
`terms of its patent protection and inventor friendly laws. (Quinn, G. & Brachmann, s. (2017, Feb. 2,
`20”). Michelle Lee’s views on patent quality out of touch with reality facing patent applicants. Retrieved from
`
`
`
`h
`:ffwwwj watchdo .comx’20] WOZIUZImichelle-lees- atent- ualit '~reali
`iid=7T 1 SEE ;
`Quinn, G. (2017, April 10). Michelle Lee launches PTAB initiative to ‘shape and improve’ IPR proceedings.
`Retrieved from hit
`:flwwwj watchdo .comf201'ii04i [Olmichelle-Iee- tab-initiative-i r- roceedin s'id=8l 932i
`
`
`
`It appears, based on the extremely high percentage of cancellations since the formation of the
`PTAB in 2012 that the IPR process was set up primarily to protect large companies which have
`deep pockets for lobbying. It seems that the IPR system favors two groups: patent infringers
`from Silicon Valley and the pharmaceutical industry.
`
`The actions of the PTAB are signaling inventors and scientific and technological innovators that
`their lawfiilly allowed and issued patents have little or no value since they can so easily be
`cancelled. The USPTO seems to have forgotten why it was formed in the first place - patent
`protection for innovations. I can only conclude that the USPTOI’PTAB is conducting a biased
`court process that favors influential infringers, which has no place in our democracy.
`
`(See Attachment 1 for Related Issues of Concern)
`
`Respectfully yours,
`
`”TC 9. S
`
`6:
`
`Dr. Thomas E. Sawyer
`
`sci/s
`
`CC
`
`The President of the United States
`
`Wilbur Ross, United States Secretary of Commerce
`John Roberts, Chief Justice of the United States Supreme Court
`Steven Mnuchin, United States Secretary of the Treasury
`Honorable Sharon Prost, Chief Judge, United States Court of Appeal for the Federal
`Circuit
`
`Honorable Gloria M. Navarro, Chief Judge, United States District Court, District of
`Nevada (Voip-Pal.com Inc. v. Apple Inc. Case No. 2:2016cv00260, Voip-Pal.com v.
`Twitter Inc., Case No. 2:2016cv02338, Voip-Pal.com Inc. v. Verizon Wireless
`Services LLC et al., case number 2: 1 6-cv-0027l)
`Honorable Richard F. Boulware ll, United States District Court, District of Nevada
`(Voip-Palcom Inc. v. Apple Inc. Case No. 2:2016cv00260, Voip-Pal.com Inc. v.
`
`

`

`Twitter Inc., Case No. 2:2016cv02338, Voip—Pal.com Inc. v. Verizon Wireless
`Services LLC et al., case number 2: 16-cv-00271)
`Office of the Solicitor General of the United States
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`Page Is
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`Judge Barbara Benoit, PTAB
`Judge Lynne Pettigrew, PTAB
`Judge Stacy Margolies, PTAB
`Michelle Lee, USPTO
`US Senator Orrin Hatch, Utah
`US Senator Mike Lee, Utah
`
`US Senator Ed Markey, Massachusetts
`US Senator Mitch McConnell, Kentucky, Senate Majority Leader
`US Representative Paul Ryan, Wisconsin, Speaker of the House of Representatives
`Governor Gary Herbert, Utah
`Sean Reyes, Attorney General of the State of Utah
`Director Will Covey, USPTO Office of Enrollment and Discipline
`Patents Ombudsman
`
`Dr. Colin Tucker, Chairman of the Board, Voip-Pal.com Inc
`Multiple Media Outlets
`
`