Dr. Thomas E. Sawyer
`3626 E. Little Cottonwood Lane
`Sandy, Utah 84092
`
`
`August 31, 2017
`The Honorable Wilbur Ross
`Secretary of the U.S. Department of Commerce
`1401 Constitution Ave., NW
`Washington, D.C. 20230
`
`Dear Secretary Ross,
`Having served four past U.S. presidents, I have great respect for the challenges entrusted to your
`office. I am writing to express my concern over the current patent process, which has been
`reflected in the news coverage recently showing inventors burning their patents in the street.
`(Brachmann, S. & Quinn, G. (2017, Aug 11). US Inventor sets patents on fire as part of PTAB protest at USPTO.
`IPWatchdog. Retrieved from http://www.ipwatchdog.com/2017/08/11/us-inventor-patents-on-fire-ptab-protest-
`uspto/id=86757/, and BBC.com (Producer). (2017, Aug 12). Why America’s inventors are burning patents [Video
`file]. Retrieved from http://www.bbc.com/news/av/world-us-canada-40907634/america-s-inventors-vent-over-
`patent-infringement)
`As a shareholder and former Chief Executive Officer of Voip-Pal.com, which has had eight Inter
`Partes Reviews filed against the same two patents (all concerning the same basic issues), I find
`such “gang tackling” (which by law the director of the USPTO can correct) is one of many
`things that currently undermine the confidence of the American people and the rest of the world
`in the U.S. patent system.
`
`Recently, some very disturbing revelations have come to light during oral arguments before a
`panel of appellate court judges in the case of Yissum Research Development Co. v. Sony Corp.
`(Fed. Cir. 2015). By its own admission, the USPTO has revealed that its Director at the time,
`Michelle Lee, was apparently able to assign panels to IPRs based upon her bias. The Director
`and her inner circle would predetermine the outcomes of IPR cases before they were decided by
`a three-judge panel. While the issue in this particular case dealt specifically with joinder, the fact
`remains the Director used her power to manipulate panels in order to achieve her desired
`outcome. During Michelle Lee’s tenure at the USPTO, she seemed never willing to assist the
`patent owner, not wanting to “place her finger on the scale.” However, it seems she had no
`problem placing her “finger on the scale” by changing the judges when it was seemingly
`benefiting a patent infringer.
`
`It is obvious from the testimony depicted below, that no matter how strong the patent owner’s
`case may have been, judges were apparently put in place to carry out the Director’s policies of
`cancelling patent claims to satisfy her wishes. Webster’s dictionary defines a “kangaroo court” as
`“a mock court in which the principles of law and justice are disregarded or perverted” or “a court
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`characterized by irresponsible, unauthorized, or irregular status or procedures.” Both definitions
`appear to apply here.
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`It is difficult for me to believe this type of procedural manipulation exists in a U.S. court. I am
`baffled that such an apparent blatant abuse of our legal system is permitted within the USPTO.
`While arguing on behalf of the USPTO, attorney Scott Weidenfeller acknowledged that the
`Director, a non-judicial officer, would assert her administrative authority to replace judges, even
`after panels had been selected, to ensure her desired outcome. As Mr. Weidenfeller stated, this is
`viewed by the USPTO as a completely acceptable practice in order to enforce a clear bias against
`individual patent owners and inventors. Mr. Weiednefeller further confirmed the USPTO’s belief
`that the circuit court has no authority over the PTAB’s decision, when he said, "Our position is
`that this court lacks jurisdiction to review this decision at all.”
`I had to read the transcript multiple times to comprehend its significance. Even the judges asking
`the questions seemed perplexed by Mr. Weidenfeller’s answers. This amazing revelation
`confirms that the PTAB, which operates as a non-Article III court, nonetheless makes decisions
`about property, is nothing more than a kangaroo court that operates at the whim of the Director.
`
`
`Partial Transcript of Oral Arguments
`
`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.
`
`(717 Madison Place: Oral Arguments and the Federal Circuit (n.d.). Selection process for assigning judges
`to expanded PTAB panels. Retrieved from http://www.717madisonplace.com/?p=9143)
`In an August 27-28, 2017 updated entry from 717 Madison Place, Selection process for
`assigning judges to expanded PTAB panels, the Federal Circuit (WI-FI One v. Broadcom, Fed
`Cir. 2017) noted another occasion of “panel-stacking.”
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`During that oral argument, Judge Wallach noted that on the list of “shenanigans” — see the
`Supreme Court’s Cuozzo decision for more context on the “shenanigans” reference — was the
`Director appointing judges to come out the way that the Director wanted a case to be decided
`on re-hearing.
`
`Judge Wallach: No, no, no . . . according to the Government, it’s not individual panels —it’s the
`Director. Because, on the list of shenanigans, the Director, if the Director doesn’t like a decision,
`and someone seeks an expanded panel, can appoint judges who take a different position which
`is more in line with what the Director wants. So, in the long run, what you’re really saying is, it’s
`the Director who decides it, as opposed to this court.
`
`Later in the oral argument, Judge Wallach would ask the attorney for the opposing side similar
`questions:
`
`Judge Wallach: The situation I described to your esteemed colleague where in effect the
`Director puts his or her thumb on the outcome . . . shenanigan or not? It’s within the written
`procedures.
`
`Attorney: So, your hypothetical is the Director stacks the Board?
`
`Judge Wallach: Yeah, more than a hypothetical, it happens all the time. It’s a request for
`reconsideration with a larger panel.
`
`Attorney: That’s within the Director’s authority. The make-up of the Board to review the
`petition is within the Director’s authority. Whether that rises to the level of shenanigans or not .
`. . .
`
`Judge Wallach: Aren’t there fundamental rule of law questions there . . . basic things like
`predictability and uniformity and transparency of judgments and neutrality of decision makers?
`And don’t we review that kind of thing?
`
`The testimonies above appear to be clear admissions or recognition of a “rigged system” practice
`by the USPTO. Unfortunately, Michelle Lee’s abrupt departure as Director has not yet resulted
`in any meaningful changes. In the case of my former company, Voip-Pal, three judges were
`suddenly removed and replaced with no explanations ever given. This action becomes quite
`troublesome in light of the testimonies given in the previously referenced cases.
`
`If Director Lee and her inner circle have made this change to protect high-profile petitioners and
`to affect Voip-Pal’s pending litigation vs. Apple, Verizon, AT&T and Twitter, then they are
`involved in anti-competitive practices that in the private sector might have constituted organized
`crime. Legal decisions must be totally impartial and nonbiased. Any hint of manipulation and or
`subjectivism within the system should result in the cancellation of all pending IPR petitions
`against Voip-Pal.
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`P a g e | 4
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`In practice, the PTAB/IPR process does not provide a trial on the merits or a fair procedure to
`determine the validity of a patent. Instead, this is a structure that appears to have been
`deliberately set up to satisfy the agenda of the Director of the USPTO, who, prior to her
`appointment, was the former Deputy General Counsel of Google, and their chief patent litigator.
`Sadly, the PTAB/IPR, under its prior leadership, worked diligently to discredit issued patents
`approved by the USPTO’s own examiners, who are among the most competent and qualified in
`the world. In doing so, Director Lee achieved her apparent goal of making issued patents
`worthless.
`
`Since the PTAB conflict of interest rules are governed by the Department of Commerce’s
`standards, rather than those employed in an Article III court, or those suggested by the Model
`Rule of Professional Conduct adopted by most states, it was impossible to determine how stock
`and/or stock options acquired during her tenure at Google might have influenced the “policy
`position” that she worked so hard to enforce. Given the potential for conflicts of interest or, at
`the very least, an appearance of impropriety, Director Lee should have been compelled to
`provide full financial disclosure of her personal and immediate family’s stock and options
`holdings.
`
`Given the continued effect of the “policy position” of Director Lee that favored the interests of
`large Silicon Valley technology companies at the expense of small intellectual property
`development firms, Voip-Pal and other inventors seem to have been “set up” in a system that
`cannot deliver fair and impartial decisions based on technical merits.
`For example, in Voip-Pal’s seven pending IPR’s, since the petitioners are all large technology
`firms and Director Lee replaced the judges hearing the cases (presumably to further her “policy
`positions”), there appears to be little or no chance that the merits of their inventions will have
`any impact on the decision of the carefully selected and tutored panel.
`The USPTO’s own admissions about the manipulations of the IPR process have fundamentally
`damaged the credibility and integrity of this agency and its procedures. In light of these
`seemingly unfair/illegal acts, the only equitable and acceptable resolution would be an
`immediate dismissal of the seven pending IPR petitions against Voip-Pal, enabling them to
`enforce their issued patents.
`
`Respectfully yours,
`
`
`
`Dr. Thomas E. Sawyer
`
`Enclosure
`
`CC: The President of the United States
`
`Honorable David P. Ruschke, Chief Judge for the Patent Trial and Appeal Board
`
`Joseph Matal, Acting Director of the USPTO
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`P a g e | 5
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`Honorable Jeff Sessions, Attorney General of the United States
`Christopher Wray, Director of the FBI
`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 Timothy B. Dyk, United States Court of Appeal for the Federal Circuit
`Honorable Richard G. Taranto, United States Court of Appeals 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 2:16-cv-00271)
`Honorable Richard F. Boulware II, United States District Court, District of Nevada
`(Voip-Pal.com 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)
`Andrei Iancu, Nominee, Director of the USPTO
`Judge Josiah Cocks, Patent Trial and Appeal Board
`Judge Jennifer Meyer Chagnon, Patent Trial and Appeal Board
`Judge John Hudalla, Patent Trial and Appeal Board
`Office of the Solicitor General of the United States
`US Senator Orrin Hatch, Utah
`US Senator Mike Lee, Utah
`US Senator Ed Markey, Massachusetts
`US Senator Mitch McConnell, Kentucky, Senate Majority Leader
`US Senator Chuck Schumer, New York, Senate Minority Leader
`US Senator Chuck Grassley, Iowa
`US Senator Marco Rubio, Florida
`US Senator Maria Cantwell, Washington
`US Senator Mike Crapo, Idaho
`US Senator James Risch, Idaho
`US Senator Jeff Flake, Arizona
`US Senator John McCain, Arizona
`US Senator Patrick Leahy, Vermont
`US Senator Chris Coons, Delaware
`US Senator Tom Cotton, Arkansas
`US Senator Dick Durbin, Illinois
`US Senator Mazie Hirono, Hawaii
`US Representative Paul Ryan, Wisconsin, Speaker of the House of Representatives
`US Representative Mia Love, Utah
`US Representative Nancy Pelosi, California
`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
`
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`[1]
`
`•
`
`•
`
`Supplemental Issues Regarding Patents and the PTAB
`
`Legal Concerns Regarding PTAB/IPR Procedures
`
`In theory, the IPR involves the same standard as the patent process; in practice, the IPR
`process invalidates more than 80% of the patents which were awarded after skilled
`examiners considered the claims unique and valid following multiple years of careful
`review.
`
`In Federal District court, an Article III court, a plaintiff may only sue once on any
`particular issue. By contrast, in the PTAB, a petitioner is permitted to sue as many times
`as they wish against a single patent. For example, Voip-Pal has had the same two patents
`challenged by IPR’s, eight times. In the Federal District court, such behavior would
`constitute vexatious litigation and would result in dismissal of any complaints filed after
`the initial action.
`
`Infringers use the “broadest reasonable interpretation” standard, together with
`combinations of multiple patents and testimony of highly paid consultants to kill patents.
`Determining the “obviousness” of combinations of existing patents to disallow the claim
`in question is disingenuous.
`
`•
`
`
`
`• Extinguishing property rights by canceling the claims of a patent without an Article III
`jury trial would seem unconstitutional. The Supreme Court ruled as far back as 1898 that
`once granted, a patent is a private property right.
`
`Recent Industry Commentary
`In a recent article, Scott Eden observed, “Starting in the early 2000s, the rights and protections
`conferred by a U.S. patent have eroded to the point that they are weaker today than at any time
`since the Great Depression. A series of Supreme Court decisions and the [America Invents Act],
`the most important patent-reform legislation in sixty years, signed into law in 2011, have made it
`so. The stated purpose of the reform was to exterminate so-called patent trolls—those entities
`that own patents (sometimes many thousands of them) and engage in no business other than
`suing companies for patent infringement. The reforms have had their desired effect. It has
`become harder for trolls to sue. But they've made it harder for people with legitimate cases …to
`sue, too. 1
`Greg Raleigh, a Stanford-educated engineer who came up with some of the key standards that
`make 4G networks possible, stated "It has become questionable whether a small company or
`startup can protect an invention, especially if the invention turns out to be important." Some call
`it collateral damage. Others maintain it was the express purpose of the large corporations to harm
`
`
`1 Eden, Scott, “How the U.S. Patent Office got so Screwed Up” Popular Mechanics, Jun 21, 2016.
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`[2]
`
`inventors. But, in the end, the result is the same. The Davids have been handicapped in favor of
`the Goliaths. 2
`The IPR process deprives patent owners of property rights without the substantive and
`procedural protections of an Article III Court. The United States Supreme Court recently
`granted certiorari in the Oil States vs. Greene’s Energy Group, et al. on the following question:
`Whether inter partes review – an adversarial process used by the Patent and Trademark Office
`(PTO) to analyze the validity of existing patents – violates the Constitution by extinguishing
`private property rights through a non-Article III forum without a jury. 3
`Supreme Court Decisions Intentionally, or Unintentionally, Favor the Patent Infringer
`In a unanimous decision of the Court delivered by Justice Thomas the Supreme Court, TC
`Heartland LLC v. Kraft Food Group Brands LLC, reversed the Federal Circuit and ruled that 28
`U.S.C. 1400(b) remains the only applicable patent venue statute for domestic patents. For the
`most part, this decision will require patent owners to sue those infringing their patents in a
`district court in the state where the infringer is incorporated.4
`Cuozzo Speed Technologies, LLC v. Lee, the United States Supreme Court upheld the United
`States Patent Office’s regulation requiring the Patent Trial and Appeal Board to apply the
`broadest reasonable interpretation (BRI) standard in IPR proceedings rather than the Plain and
`Ordinary Meaning standard used in Article III courts.5
`Other differences between the two systems include:
`1. Issued patents receive fundamentally different levels of deference in district court and
`PTAB proceedings. In district court, patents enjoy a statutory presumption of validity and
`challengers must prove each patent claim invalid by clear and convincing evidence—the
`highest burden of proof in U.S. civil litigation. But no such presumption of validity
`applies in PTAB proceedings. Petitioners need only establish unpatentability by a
`preponderance of the evidence—i.e., that the claims are more likely than not
`unpatentable. This is a significantly reduced burden of proof compared to litigation.
`
`2. A subtle but important distinction also exists in standing requirements. As a jurisdictional
`prerequisite to initiating a civil action in federal district court, a party must have
`sufficient Article III standing. On the other hand, standing is not required for those who
`file IPR petitions with the board. In fact, any member of the public, other than the patent
`owner, may file a petition with the PTO to initiate an IPR.
`
`
`2 Quoted in Supra
`3Gene Quinn, IP Watchdog, Jun. 6, 2017 “Supreme Court to decide if Inter Partes Review is Unconstitutional”
`http://www.ipwatchdog.com/2017/06/12/supreme-court-inter-partes-review-unconstitutional/id=84430/
`4Gene Quinn, IP Watchdog, May 22, 2017 “Industry reaction to SCOTUS patent venue decision in TC Heartland v.
`Kraft Food Group” http://www.ipwatchdog.com/2017/05/22/industry-reaction-scotus-patent-venue-decision-tc-
`heartland-v-kraft-food-group/id=83518/
`5 Cuozzo Speed Technologies, LLC v. Lee https://www.supremecourt.gov/opinions/15pdf/15-446_ihdk.pdf
`
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`[3]
`
`The IPR petition, however, must identify the real party in interest, which is not required
`for district court plaintiffs. In addition, though anyone can initiate an IPR, a party must
`have standing to appeal an adverse decision to the U.S. Court of Appeals for the Federal
`Circuit. For public interest groups and others who may have difficulty establishing a
`potential injury from the decision on patentability, they may be able to institute an IPR
`but not appeal any loss.
`
`3. District court litigants deal with a set of patent claims that cannot change, as no procedure
`exists to modify claims. They also have procedures for Summary Judgment, broad
`discovery and extended hearings, compared to the typical two hour IPR trial.
`
`4. Both PTAB decisions and district court judgments may be appealed directly to the U.S.
`Court of Appeals for the Federal Circuit, but the standards of review are somewhat
`different. A district court's factual findings are reviewed for clear error whereas the
`Federal Circuit reviews the Board's factual findings for substantial evidence. Legal issues
`are reviewed under the same de novo standard. Litigants should keep in mind that,
`historically, the affirmance rate of Board decisions by the Federal Court of Appeals is
`quite high (about 80%), perhaps owing in part to the more deferential 'substantial
`evidence' standard of review. 6
`
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`6 Adapted from: Flibbert, Michael J., Queler, Maureen D 5 Distinctions Between IPRs and District Court Patent
`Litigation, Corporate Counsel. December 16, 2015. Accessed 8/14/17,
`http://www.finnegan.com/resources/articles/articlesdetail.aspx?news=64c22ef3-9abe-4637-a445-c75c56892eb1
`
`