Prior to being hired in March 2013 by the U.S. Department of Commerce to become an Administrative Patent Judge (APJ) on the PTAB, Matthew R. Clements represented Apple as patent infringement defense counsel while working for Ropes & Gray. Since September 2014, APJ Clements has been assigned to numerous petitions, mostly CBMs but some IPRs, filed by Apple, his former client. Clements’ record in deciding cases, perhaps predictably, is tilted overwhelmingly in Apple’s favor.
PatentsPostGrant published an article severely criticizing our coverage of this matter for a variety of reasons. Among them was the fact that we identified the APJ by name who represented Apple as defense counsel and who has been deciding Apple post grant petitions. We’ve received this type of criticism in the past, which strikes me as both odd and petty. I suppose we could have referred to the PTAB judge in question as APJ X, the way the Patent Office referred to Examiner A when it came to light that he/she submitted over 700 hours in fraudulent time sheets. But referring to APJ X and then providing the citations to the cases and links that factually verify our reporting would seem to be a peculiar game of smoke and mirrors.
PatentsPostGrant also took issue with our claim that there is a problem with Clements deciding the post grant petitions of his former defense client, citing to a generic USPTO ethics document that they claim applies to PTAB judges. The document does not mention the PTAB, nor does it mention the word “judge.” Instead, it is the general policy that applies to all USPTO employees. The claim is made that this applies to PTAB judges, and by its express terms allows employees to work on matters as soon as 1 year after they have ceased representing a former client (see page 7). So the claim is made that Clements acted ethically because he did not decide any petitions of his former patent infringement defense client for 18 months.
PTAB judge are appointed by the Secretary of Commerce, which makes them far more than mere employees of the USPTO. They should be held to a higher standard than a generic all employees policy. It is also unacceptable, and completely nonsensical, for APJs to have less stringent conflict standards than for the attorneys appearing before them. Simply put, if an APJ couldn’t represent both parties in the case that APJ should not ethically be allowed to issue a decision in the case, period.