Dr. Thomas E. Sawyer
`3626 E. Little Cottonwood Lane
`
`Sandy, Utah 84092
`
`July 11.2017
`
`The Honorable David P. Ruschke
`
`Chief Judge for the Patent Trial and Appeal Board
`Patent Trial and Appeal Board
`P.O. Box 1450
`
`Alexandria. VA 22313—1450
`
`Subject:
`
`Inter Partes Review Apple v. Voip-Pal.com Inc. Case IPRZOlo-Ol 198 Patent
`9,179,005 B2 and Case lPR2016~0l201 Patent 8,542,815 B2
`
`Dear Judge Ruschke.
`
`I
`lf am disappointed that l have not received a response concerning my letter of June 21. 2017.
`would be very grateful for an explanation for the replacement of all of the members of the panel
`designated to hear the two lPR‘s identified above.
`
`in an attempt to try and understand the rationale for the removal of the judges, l have re-read
`CFR 11.80331 - I 1.804. USPTO Rules of Professional Conduct for Practitioners; 28 U.S.C. §
`455. which deals with the disqualification ofjudges; and Rule 59 of the Federal Rules of Civil
`Procedure, which deals with the rationale for retrial in other federal courts and 37 CFR 42.12.
`that deals more generally with sanctions; to see if they would clarify the picture for me.
`
`USPTO Rules of Professional Conduct
`
`37 CPR 11.803lb) provides:
`
`(a) A practitioner who knows that another practitioner has committed a violation of the
`USPTO Rules of Professional Conduct that raises a substantial question as to that
`practitioners honesty, trustworthiness or fitness as a practitioner in other respects, shall
`inform the OED Director and any other appropriate professional authority.
`
`(b) A practitioner who knows that a judge, hearing officer. administrative law judge,
`administrative patent judge, or administrative trademark judge has committed a violation
`of applicable rules ofjudicial conduct that raises a substantial question as to the
`individual's fitness for office shall inform the appropriate authority.
`(c) The provisions of this section do not require disclosure of information otherwise
`protected by § 1 1.106 or information gained while participating in an approved lawyers
`assistance program.
`
`

`

`Psgch
`
`Judicial Misconduct
`
`28 U.S.C. §45§ provides:
`
`Any justice, judge, or magistrate judge 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:
`
`( 1) Where he has a personal bias or prejudice concerning a party, or personal knowledge
`ot‘disputed evidentiary facts concerning the proceeding;
`
`(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 the judge or such lawyer has been a material witness
`concerning it;
`
`(3) Where he has served in governmental employment and in such capacity participated
`as counsel, adviser or material witness concerning the proceeding or expressed an
`opinion concerning the merits of the particular case in controversy;
`
`(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) lie or his spouse, or a person within the third degree of relationship to either of theme
`or the spouse ot‘such a person:
`
`(i) 15 a party to the proceeding or an officer, director, or trustee ofa party.
`
`Analogous Processes for Retrial
`
`Federal Code of Civil Procedure Rule 59
`
`(a) In General.
`
`(1) Grounds for New "l‘rial. The court may, on motion, grant a new trial on all or some of the
`issues—wand to any party—mas follows:
`
`(A) after a jury triaL for any reason for which a new trial has heretofore been granted in an
`action at law in federal court; or
`
`Sanctions
`
`37 CFR § 42.12
`
`Ifa violation that involves judicial misconduct has occurred, the applicable sanctions are
`contained in CPR Title 37 > Chapter I > Subchapter - > P211142 > Subpart A > Section 42.12
`“A practitioner who knows that ajudge, hearing officer, administrative law judge,
`
`

`

`administrative patent judge, or administrative trademark judge has committed a violation of
`applicable rules ofjudicial conduct that raises a substantial question as to the individual‘s
`fitness for office shall inform the appropriate authority.”
`
`(This section appears to contemplate a USPTO definition ofjudicial misconduct that doesn‘t
`appear in the same area of the Code.)
`
`Pagel3
`
`(b) Sanctions include entry of one or more of the following:
`
`(1) An order holding facts to have been established in the proceeding;
`
`(2) An order expunging or precluding a party from filing a paper;
`
`(3) An order precluding a party from presenting or contesting a particular issue;
`
`(4) An order precluding a party from requesting, obtaining, or opposing discovery;
`
`(5) An order excluding evidence;
`
`(6) An order providing for compensatory expenses, including attorney fees;
`
`(7) An order requiring terminal disclaimer of patent term; or judgment in the trial or
`dismissal of the petition.
`
`Assumptions and Conclusions
`
`My assumptions, after reviewing the quoted sections, are that:
`
`l. The replacement was made to avoid any perception of bias based on undisclosed prior
`relationships of any of the panel members and the Petitioner or some other circumstance that
`might appear to be prejudicial to the administration ofj ustice. If this was indeed the reason, then
`the solution does not resolve the problem. The replacement of the judges, while leaving the
`lPR’s instated, removes the cause, but not the consequence.
`
`2. It is common practice in other federal judicial settings to set aside the original outcome and try
`the case again to ensure that decision, which may have been based upon bias, can be tried again
`in an unbiased setting. Such an outcome would be particularly appropriate in this setting, since
`the statistics released by the PTAB and others suggest that there is an overwhelming
`likelihood that a patent that has an IPR instituted will have some or all of its claims found to
`be un—patentable. Lee and Simpson, in an article called How Kill Rates are Affecting Patents
`conclude, ‘Once the PTAB institutes a petition, the odds are overwhelmingly in favor of the
`petitioner. Of the 404 final written decisions analyzed (that had been made at the time of the
`article), 88 percent (356 of 404) resulted in at least one claim being invalidated.
`Importantly, this average remained steady between 2014 and 2015, providing petitioners
`with a reasonably high level ot‘contidence that an IPR can and will weaken a challenged
`patent. " {httpszf/www.law360.comlarticles/699860/ptab-kill-rateshow-iprs~are~affecting—patents
`accessed lune l8. ZOi 7}
`
`

`

`its 21.? 34
`
`The very high percentage of patents that are invalidated in the lPR system appears to be
`several times greater than the percentage of invalidation for a similar patent through the
`federal court system. In [PR Statistics Revisited, Yep [1's u Killing Field. Samson Vermont
`does an “apples to apples" comparison of kill rate between section 102 cases filed in the
`PTAB versus federal court and concluded that the federal courts for section 102 cases have
`an 18.7% kill rate. while the P TA B/ll’R kill rate for similar patents is 4] .1 9/63.
`[https2//www.patentattomey.c_qm/ipr~statistics-revisitedaep-its-a-patent-killing-tieldi' accessed June l9.
`201 7]
`
`0f the available sanctions for bias or misconduct on the part of the previous panel, it
`appears that only ajudgment in the patent owner's favor or a dismissal of the action
`would make the patent owner whole.
`
`[appreciate your difficult position, but as a former CEO of VolP-Pal lam concerned
`that any bias, conflict or other problem with the previous panel may not be addressed
`in a way that the company is made whole.
`
`Respectfully Yours,
`,-4_
`
`is m
`
`\m ‘
`
`tr.
`
`___,, HAN“) xw‘ M”, ._ www~‘-.~.._HM,
`
`Dr. Thomas E. Sawyer
`
`CC
`
`Donald J. Trump, President ot'the United States
`Wilbur Ross, US Secretary ol~ Commerce
`Steven Mnuchin. US Secretary of the Treasury
`Dr. Ben Carson. US Secretary Housing and Urban Development
`US Senator Orrin Hatch, Utah
`US Senator Mike Lee. Utah
`
`U S Senator Ed Markcy. Massachusetts
`US Senator Mitch McC‘onneil. Kentucky. Senate Majority Leader
`US Senator Chuck Schumer, New York, Senate Minority Leader
`US Senator Marco Rubia FL US SenatorJetTFlake. Arizona
`US Chuck Senator Grassley, Iowa
`US Senator Patrick Leahy. Vermont
`US Senator Chris Coons. Delaware
`US Senator Tom Cotton. Arkansas
`US Senator Dick Durbin. lllinois
`US Senator Maxie Hirono. Hawaii
`US Representative Paul Ryan Wisconsin. Speaker ol‘the House of Representatives
`US Representative Mia Love. Utah
`US Representative Nancy Pelosi. C alifoniia. Minority Leader ot‘the House of Representatives
`
`

`

`Pagels
`
`Governor Gary Herbert, Utah
`The Honorable John Roberts, Chief Justice of the Supreme Court of the United States
`The Honorable Clarence Thomas, Associate Justice of the Supreme Court of the United States
`The Honorable Anthony Kennedy, Associate Justice of the Supreme Court of the United States
`The Honorable Ruth Butler Ginsberg Associate Justice of the Supreme Court of the United States
`The Honorable Stephen Breyer, Associate Justice of the Supreme Court of the United States
`The Honorable Samuel Alito, Associate Justice of the Supreme Court of the United States
`The Honorable Elena Kagan, Associate Justice of the Supreme Court of the United States
`The Honorable Sonia Sotomayor, Associate Justice of the Supreme Court of the United States
`The Honorable Neil Gorsuch, Associate Justice of the Supreme Court of the United States
`The Honorable Sharon Frost. Chief Judge, United States Court of Appeal for the Federal
`Circuit
`
`The Honorable Gloria M. Navarro, Chief Judge, US District Court, District of
`Nevada (Voip«Pal.com lnc. v. Apple Inc. Case No. 2:2016cv00260, Voip’Palcom v.
`Twitter 1110., Case No. 2:20l6cv02338, Voip-Pal.com lnc. v. Verizon Wireless Services
`LLC et al“ case number 22l6—cv-0027l)
`The Honorable Richard F. Boulware ll, US District Court. District of Nevada (Voigy
`Paleom inc. v. Apple Inc. Case No. 2:2016cv00260, Voip—Pal.com Inc. v. Twitter loo,
`Case No. 2:2016cv02338, Voip—Pal.com inc. v. Verizon Wireless Services LLC et al.. case
`number 2: l6-cv~0027l)
`Office of the Solicitor General of the United States
`Sean Reyes, Attomey General of the State of Utah
`Director Will Covey, USPTO GFEce of Enrollment and Discipline
`Patents Ombudsman
`
`Judge Josiah Cocks, PTAB
`Judge Jennifer Chagnon‘ PTAB
`Judge John Hudalla PTAB
`Dr. Colin Tucker, Chairman of the Board, Voip-Pal.com inc
`Multiple Media Outlets
`
`CC's sent via Registered US Mail and email if available
`
`