On Thursday, May 11, 2017, I submitted a Freedom of Information Act (FOIA) request (see bottom) to the United States Patent and Trademark Office (USPTO). My FOIA request seeks a copy of any and all rules of judicial conduct, ethical policies and/or codes of professional or judicial conduct that apply to Administrative Patent Judges (APJs) of the Patent Trial and Appeal Board (PTAB). This request is provoked due to a revelation that at least two APJs have been assigned to hear cases, and have been deciding cases and issues, relating to post grant challenges filed by former clients. In both situations the challenger has been Apple, and in both instances the APJs formely represented Apple as defense counsel in patent infringement proceedings.
Several weeks ago I made a request of the Communications Office, which is fairly typical for a publication to do. I pointed to the Code of Judicial Conduct applicable to Article III judges appointed pursuant to the U.S. Constitution. I asked if there was a similar code of conduct that applied to APJs of the PTAB. I have been made aware of an all employee’s ethics policy that does not mention the PTAB or APJs specifically. This all employee’s ethics policy seems to be the only ethics policy applicable to the PTAB, which if true would be extraordinary given it only requires employees to recues themselves for a single year after having worked for an employer.
There is no time limit on the need to recues for an Article III judge, and neither is there any time limit on the requirement to refuse representation when one has a conflict created by the opposing side being a former client. Moreover 37CFR seems to contemplate the existence of rules of judicial conduct applicable to APJs. A practisioner commits a breach of the rules of ethics if the practisioner becomes aware that an APJ has violated “the applicable cause of judicial conduct” and does not report such violation to the appropriate authority.