Dr. Thomas E. Sawyer
`
`3626 E. Little Cottonwood Lane
`
`Sandy, Utah 84092
`
`July 27, 2017
`
`The Honorable Wilbur Ross
`
`Secretary of the US. Department of Commerce
`1401 Constitution Ave, NW
`Washington, DC. 20230
`
`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 223134450
`
`Secretary Ross and Judge Ruschke,
`
`I am a former officer and concerned shareholder of VolP«Pal.com, Inc. (VolP~Pal). I am writing
`to express my reservations about the failure of the present PTAB system to provide constitutional
`protections to patent holders.
`
`1. Legal Background
`
`Since a patent is “property” a patent should be protected by due process of law. The applicable
`portions of the Bill of Rights that provides that protect are the Fifih and Seventh Amendments.
`
`The Fifth Amendment to the Constitution, in PM provides:
`
`No person shall be. .. deprived of life, liberty, or property, without due process of law;
`nor shall private property be taken for public use, without just compensation.
`
`The Seventh Amendment to the Constitution provides:
`
`In Suits at common law, where the value in controversy shall exceed twenty dollars, the
`right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-
`examined in any Court of the United States, than according to the rules of the common
`law.
`
`

`

`The America lnvents Act (AIA) makes no provision for a “trial by jury” nor does it allow an
`appeal of a final written institution decision, which is the decision of greatest importance next to
`the granting of the patent itself.
`
`Since nearly ninety percent of all patent petitions that are instituted by the PTAB result in the
`invalidation of one or more claims, the lack of resjudicata, which precludes repeated litigation
`of issues and claims by a “real party in interest” or its “privy,” would eliminate due process at a
`stage in the lPR process where it may matter most.
`
`H. The History of the VolP-Pal Litigation in the PTAB
`
`VolP-Pal.com has had eight [PR petitions filed against it within the past 14 months, all against
`the same two patents. The first petition was filed by Unified Patents (“Unified”). Unified is a
`membership entity that represents itself as a proxy for many computer compmies including,
`presumably, Apple Inc, and AT&T. Since the law requires that all parties filing a petition for an
`lPR either be parties of interest or their privies. VoIP-Pal can only assume by the fact that
`Unified’s petition was considered by the PTAB meant that the PTAB panel determined the
`Unified filed as a privy for the real parties in interest, Apple and AT&T.
`
`HI. Real Parties in Interest and Privics
`
`35 U.S.C. 312(3) and 35 U.S.C. 31 l, which govern the [PR petition process, state that a petition
`for an IPR must identify all real parties in interest, Unified Patents was allowed to file a petition
`for an Inter Panes review on behalf of an undisclosed membership.
`issue and claim preclusion
`lie at the heart of Res Judicata since they serve to limit needless litigation and ensure that the
`holding has the intended effect on those parties that are actually legally involved.
`It ensures that
`members of an industry-focused entity cannot use that entity as a tool to allow members to
`conduct “practice” litigation through the entity’s litigation before the company has to deal with
`any of the outcomes of the decision
`
`My specific concern is that the petition of Unified Patents, which holds its membership list to be
`a trade secret, forces the litigants in the present case to assume that Unified filed as a “privy” of
`Apple and AT&T and, that such a role was identified by the PTAB panel, although there was no
`explicit finding to that effect. Consequently, the “real parties in interest” should be bound by the
`decisions made by the PTAB on the Unified petition.
`
`In other federal courts, the interests of a broader group of similarly situated people or
`institutions, is facilitated through allowing such groups to file an amicus curiae brief with the
`court. in this way the broader policy issues may be addressed but an entity that is not a "real
`party in interest” is not allowed to hijack the process. If United Patents petitioners are allowed to
`tile for lPR’s, the PTAB may effectively eliminate the legal protections of “standing.”
`
`1". Determination of the Elements Required for Unified to be a “Privy”
`
`

`

`Since the only lawful basis that Unified could claim as a basis for jurisdiction in filing its petition
`is as a “privy” for the litigants, it is important to understand how the US. Supreme Court defines
`that role.
`in Taylor v. Sturgell, 553 U.S. 880 (2008). the DC. Circuit identified a five~part test
`used by the Supreme Court to determine whether an individual was acting as a “privy” for
`another:
`
`A nonparty may be bound by ajudgment if there is both:
`
`1. “Identity of interests”
`
`2. “adequate representation” and
`
`at least one of the three other factors:
`
`3. “a close relationship between the present party and his putative representative,”
`
`4. “substantial participation by the present party in the first case,” or
`
`5. “tactical maneuvering on the part of the present party to avoid preclusion by the prior
`judgment."
`
`The “identity of interest” and anyone of the last three factors should be cause for concern, since
`all of them would appear to create a “cabal” that could undermine the purposes of the patent
`process.
`
`V. Consequences of Unified’s Petition not being Instituted
`
`Unified’s petition was not instituted. Under the doctrines of issue and claim preclusion under res
`judicata, the decision by the PTAB not to institute would have precluded any companies for
`which it was acting as “privy” from filling on those issues again.
`
`Unified’s petition sought to invalidate claims
`
`1, 2, 7, 27, 28, 29, 34, S4, 72, 73, 74, 92, 93 and
`
`11 l of the '815 patent. The need to avoid repetitive litigation, both for judicial economy and
`fundamental fairness to the litigants, is clearly evident as you review the seven petitions
`subsequently filed by Apple and AT&T, all of which involved the same claims challenged in the
`Unified petition of VolP—Pal Patent 8,542,815 (“815”), [PR2016~01082, and/or analogous claims
`in the continuation patent, 9,179,005 (005). Based upon those facts, all of the petitions filed in
`this case subsequent to Unifig, are precluded by the dflision in Unified.
`
`VI. Possible Anti-Competitive Relationship between Unified, AT&T and Apple
`
`I have a further concern about the relationship between Unified, Apple and AT&T:
`
`Unified, as a business organization that appears to serve as a “trust” and claims to act on behalf
`of unidentified member corporations, may also involve violation of anti-trust laws. If an
`
`interested entity that is not directly involved in the immediate question before the court is
`
`

`

`allowed to drive the [PR process without identifying the business entities that it represents, such
`actions may conflict with the Sherman Act which outlaws unreasonable ”contract(s),
`combinationl g), or conspiracfies) in restraint of trade,“ and any "monopolization, attemfied
`monopolization, or conspiracy or combination to monopolize.“ Unified Patcnts’ position, as an
`entity driven by the interests of a limited group of undivulged members, might be seen as an
`“arrangement among competing individuals or businesses to fix prices, divide markets, or rig
`bids, involving “unfair methods of competition" and "unfair or deceptive acts or practices" which
`would violate the Clayton Act.
`
`VII. Other nations have revised their laws to protect inventors
`
`While our country prides itself on the fairness of its legal systems, the use of proxies in the [PR
`review process would not be tolerated under the more progressive patent laws of other countries.
`For example, while China was one of the last countries to offer meaningful patent protection to
`its inventors, it has recently recognized the value of the intellectual property of its inventors.
`That protection is reflected in its patent laws.
`
`Erick Robinson analyzed the difference between the US. patent policy on allowing noneparties
`in interest (such as Unified Patents) to file for Inter Fortes Review and the new patent policy in
`China in an article published on April 26, 2017:
`
`China, unlike America, has made innovation 3 top priority. China’s government has also, over
`the last few years, created the best patent enforcement environment in the world. Unlike the
`0.3., that makes decisions based on the next fiscal quarter, the Chinese government plays a long
`game. They make plans of 5, IO, and 25 years. For instance, while China’s economic growth
`has “slow ” (the quotation marks are because the United States would be euphoric with half of
`China’s 6.5% growth), this is because such a lull is a natural consequence of a shifi from a
`manufacmringwbased to an innovation and consortia-based economy.
`
`Because China thinks long-term, its government will be very unlikely to accept attacks on
`patents by proxy ~ especially by a foreign company such as Unified. First, patents are essential
`to China‘s growth as a technology powerhouse. Chinese compMes are no longer the copycat
`wannabes of yesteryear.
`
`They are leading the world in many areas of technology. Not only are they now directly
`competing with foreign companies, they are beating their foreign competitors. Huawei, ZTE,
`Alibaba, Baidu, Tencent, Xiaomi, Oppo, Vivo, Haier, and many others are not just more
`efficient, they are better. These new hometown heroes need patent protection, as do the next
`generation of Chinese itmovators yet to be created. The Chinese government is not going to be
`happy if a foreign Troll of Trolls (Unified Patents) comes in to kill patents on behalf of
`
`American companies. httpd/wwwjpwatchdogcom/ZOl7/04/26/unilied-patents~model~would-
`not-work-in—chinar‘id382399l (accessed 07/22, 2017)
`
`

`

`The PTABIIPR system appears to have been has been hijacked by the powerfiil Silicon Valley
`Companies that often are infringers seeking to avoid payment for licenses. The technology
`financial lobby has donated hundreds of millions of dollars to politicians. either directly or
`funneled through their foundations, presmnably to W some influence with the political
`process. I am asking you to give serious consideration to the legal flaws of the IPR process that
`fail to protect our laws and the constitutional rights of patent holders.
`
`VIII The PTABI IPR rules have been npplied in ways that:
`
`1. Permit companies like Unified Patents, which have no legal standing, to file lPR
`petitions. This is an antiocompetitive and anti~trust practice.
`2. Allow infringers to file multiple IPR petitions on the sane patent. How is a small
`inventor or company expected to bear the crippling financial burden of defending
`themselves against a myriad of lPR’s? As mentioned previously, the PTAB has become
`the “killing fields’ of patents.
`3. Provide a venue to take away the property rights of patent owners by the canceling of
`patent claims without a jury.
`4. Create a system that does not provide an appeals process for institution decisions.
`5. Permit judges to rule on cases in spite of having clear conflicts of interest.
`
`There have been a total of eight IPR petitions filed against Voip-l’al, on the same two of their
`patents. All of the claims and issues in each of the petitions are precluded by the decision not to
`institute the Unified Patents petition. The replacement of the original judges alone, does not
`make Voip-Pal whole. in order for the required due process to be followed, the PTAB must
`dismiss the two Apple petitions that have been instituted and a make a decision not to institute
`
`the live pending petitions
`
`“America the free”, is the land of opportunity and justice. The world looks up to our great nation.
`We cannot afford the present PTABIIPR system to undermine our position in the world. The
`deficiencies in the present system demand that the process be restructured consistent with the
`mandates of The Constitution. 1 hope that you will personally follow up on this serious matter.
`
`Sincerely,
`
`Dr. ’ihomas E. Sawyer
`
`

`

`CC
`
`Donald J. Trump, President of the United States Wilbur
`Ross, US Secretary of 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
`
`US Senator Ed Markey, Massachusetts
`US Senator Mitch McConnell, Kentucky, Senate Majority Leader US
`Senator Chuck Schumer, New York, Senate Minority Leader
`US Senator Marco Rubio, FL US
`Senator Jeff Flake, 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, 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
`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 Bader 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 Prost, Chief Judge, United States Court of Appeal for the
`Federal Circuit
`
`Honorable Gloria M. Navarro, Chief Judge, US District Court, District of
`Nevada (Voip-Pa1.com Inc. v. Apple Inc. Case No. 2 :2016cv00260, Voip-Palcom V. Twitter
`Inc., Case No. 2:2016cv02338, Voip-Pal.com Inc. v. Verizon Wireless Services LLC et al,
`case number 2: l6-cv-00271)
`Honorable Richard F. Boulware II, US 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-Palcom Inc. v. Verizon Wireless Services LLC et a1., case
`number 2:16-cv-00271)
`Office of the Solicitor General of the United States
`
`Sean Reyes, Attorney General of the State of Utall
`USPTO Office of Enrollment and Discipline
`Patent Office ofthe Ombudsman
`
`David P. Ruschke Chief Judge for the Patent Trial and Appeal Board
`Dr. Colin Tucker, Chairman of the Board, Voip—Pal.com Inc
`Multiple Media Outlets
`
`CC's sent via Sent Via Registered US Mail and email when available
`
`