Patently Strategic - Patent Strategy for Startups
Patently Strategic - Patent Strategy for Startups
ParkerVision v. Rule 36: The Battle for Dignity and Due Process
If a court stripped away your property rights, wouldn’t you at least want an explanation? The answer is obvious, but the reality is appalling. The practice of revoking patent rights on appeal without explanation has been happening to inventors at the Federal Circuit Court of Appeals (CAFC) at an alarming rate. In over 43% of PTAB cases on appeal at the CAFC, inventors receive a single-word response – “AFFIRMED” – rather than an opinion. This practice is referred to as the application of Rule 36 and, in cases involving the PTAB, amounts to the seizure of property from an administrative agency without any reasoning provided by a constitutionally created Article III court.
Based on the findings of our guests today, who are taking this very issue up with the Supreme Court, Rule 36 violates clear statutory requirements, raises Constitutional questions, and defies a rich history of court precedent. Gene Quinn has said that this Federal Circuit Court practice is “placing America’s inventors under siege,” and friend of the podcast and former Chief Justice of the Federal Circuit, Paul Michel, has called this practice a “dereliction of duty” that “warrants immediate Supreme Court scrutiny.” Our guests this month – Jeff Parker, Amit Vora, and Juliette Fassett – are fighting hard to make that happen.
** Our Guests **
ParkerVision has filed a petition for a writ of certiorari with the Supreme Court and recently submitted a reply brief in an attempt to get the Supreme Court to take up this innovation-crippling practice. In the coming days, the justices are scheduled to discuss the petition in private conference, where they will vote on whether to take the case.
To help us unpack Rule 36 practice and what ParkerVision is hoping to do about it, Dr. Ashley Sloat and I have enlisted the assistance of the three people closest to this case and its implications:
⦿ Jeffrey Parker, CEO of ParkerVision – an absolute pioneer in wireless technology.
⦿ Amit Vora, appellate litigator at Kasowitz Benson Torres, representing ParkerVision in its petition for cert with the Supreme Court.
⦿ Juliette Fassett from the Fair Inventing Fund, advocating for inventors’ rights. Juliette is an inventor herself, with over 30 years of experience building consumer product companies.
** Referenced Links **
⦿ ParkerVision's Cert: https://www.supremecourt.gov/DocketPDF/24/24-518/331105/20241104163210189_No.%2024-_____%20Petition.pdf
⦿ Why Patents Exist w/ Professor Mossoff: https://www.aurorapatents.com/blog/why-patents-exist-with-adam-mossoff
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G'day and welcome to the Patley Strategic Podcast where we discuss all things at the intersection of business, technology, and patents. This podcast is a monthly discussion among experts in the field of patenting. It is for inventors, founders, and IB professionals alike, established or aspiring. And in this month's episode, we're discussing the innovation crippling practice of Rule 36 affirmations and a potential Supreme Court case that will hopefully establish a landmark precedent for judicial transparency in patent law. While I would never judge anyone for initially assuming that something as innocuous sounding as Rule 36 practice was just another fringy, esoteric legal discussion, I assure you the stakes of this foundational due process question couldn't be higher. Gene Quinn of IP Watchdog has said, This Federal Circuit Court practice is placing America's inventors under siege. And friend of the podcast and former Chief Justice of the Federal Circuit, Paul Michel, has called this practice a dereliction of duty that warrants immediate Supreme Court scrutiny. To help us unpack this practice and what they're hoping to do about it, we've enlisted the assistance of the three people closest to this case and its implications. Jeff Parker, CEO of Parker Vision, an absolute pioneer in wireless technology. Amit Voramp, appellate litigator at Kasowitz Benson Torres, representing Parker Vision and its petition for a cert with the Supreme Court. And Juliet Fassett from the Fair Inventing Fund, advocating for inventor's rights. Juliet is an inventor herself with over 30 years of experience building consumer product companies. We spend most of our time on this podcast talking about three things, inventor education, practitioner education, and reform needs. So both the world as it is, and also how we'd want it to be. We say this a lot because it bears repeating, but the economy depends on innovation. Innovation depends on inventors and inventors depend on strong. Reliable and predictable patent rights. Our guests today have a story to tell that falls squarely and unfortunately in the middle of all of this. Well, I wish it were under different circumstances. I want to welcome our three guests, Jeff, Amit, and Juliet. Thank you for joining us today. Thank you. Thanks for having us. Thank you. Jeff, um, inventors and tech are really at the core of all of this. So I would love to start with you. Can you, can you briefly share for anyone less familiar, uh, about the significance of Parker Visions Innovations? Sure. So I've personally been an inventor and, uh, you know, filing for patents since about 1980. So I've been around a fairly long time, back in the time, frankly, when the system worked a whole lot better. Uh, but we won't go into that today. Um, Parker Vision, uh, developed very, uh, advanced television live studio production equipment. That's how it got started. We actually made some of the very first automatic video cameras that would track subjects with no camera operator. And that evolved over time into complete newsroom systems where TV stations could produce live news with only one or two operators instead of a dozen or fifteen or whatever the number was back then. We had the aspiration to turn a lot of the equipment connections wireless and get rid of the wiring. Also, our automatic tracking systems were wireless. The, the mid 1990s, we were looking at why is it that radio transmitters and receivers, the key component that frankly makes your smartphone connect to the network? Your wifi product, connect to your smart tv. The little tiny Bluetooth that sits in your ear all require wireless radio transceivers that transmit and receive communication signals. Well, back in the mid nineties, we recognized. That those products that transmit and receive radio signals were hundreds and hundreds of components. And they were large, and they were expensive, and they were power consuming, and they required a lot of labor to put them together. And we wanted to figure out, why was that? part of a wireless communication system based on the same basic circuit architecture that was almost 100 years old. If I was to draw the schematic for those circuits back in the mid 90s, Marconi and Armstrong, you know, the real pioneers of the day would say, Oh, you're still using my work. It wasn't in vacuum tubes. It was in solid state components, but it was the same circuits. And we recognize that that was unlikely to be the best way to take the wireless industry forward. So we set up a very Uh, significant research team. We spent, frankly, a lot of time and money to investigate other ways to transmit and receive signals. And as much as I love being an inventor, I wasn't part of the group that had that breakthrough. I have to give the credit to the team who who did that. And if you look at the patents, you won't see my name, but you'll see other people's names. David Sorrells, Greg Rollins, other people. Anyway, they came up with this idea that was so transformative that I pretty much immediately recognized, oh, this has to be really patent protected and we need to seriously look at how to make sure that when we bring this to market, that the amount of R& D that was going to go into bringing this to market could be, you know, worth the risk capital that it would take to get there. We hired the law firm of Stern Kessler, which is, you know, one of the largest independent patent prosecution firms to this day. Rob Stern happened to be a ham radio operator, and when he saw this invention, he was like, Oh my goodness, I think this is going to be one of the biggest inventions I'll handle in my career, and he's stated that many times. In fact, I think we're the only company that he's served on our board of directors, even as a public company, um, since about the year 2000. So he was all in on this. Anyway, um, this invention ultimately allowed you to take these hundreds of components and put them on a tiny little computer chip that was, like, half the size of your little fingernail. And it was less power consuming, it was better performance, but the thing that was really exciting was it enabled The things that we take for granted today, like a smartphone that can work anywhere in the world. This little tiny radio transceiver can operate over 40 different bands. So it doesn't matter if you're in Japan, or China, the United States, or South Korea. That's why your phone can operate everywhere. If you were using those old transceivers, yeah, you could do it, but your phone would be the size of a shoebox. Um, same thing for the little Bluetooth that fits in your ear. These transceivers are so tiny, and they use such little power consumption. So anyway, we patented this, we spent years, maybe five, six years on the fundamental patents. Invested a lot of time and money. And that was the foundation to the company that today, Parker Vision, which ultimately sold its broadcast television studio equipment business to Thomson Electronic and focused just on the wireless technology that we brought to market. One of the, uh, many veritable miracles that make up modern life, the, you know, the un, the unseen that, you know, defines every, everything, everything around us. Um, So flash forward, uh, a bit, you end up in, in court with TCL industries over their alleged infringement of 10 of your patents. Uh, TCL subsequently petitions for inter parties review. Uh, the PTAB ends up invalidating all challenged claims in two of your patents, uh, stripping you of your property rights previously granted by the other side of the house. Um, the PTAB is a profoundly flawed institution. Uh, it's clearly out of business, uh, but clearly out of balance rather. Um, we've talked about that a lot here. Hopefully they go out of business. Uh, so of course you, you appeal to the federal circuit court of appeals, AKA the CAFC. And a reminder for anyone out there listening, this is the sole patent appeals court in the United States. It's the only option for recourse. The CFC makes their ruling and Jeff, what do you get back? Well, we actually felt we had a very good argument to talk to the federal circuit about. And the judges, the three judge panel we had, um, even had comments back to us during our oral argument, seeming to indicate that they were in agreement with our position that the way this patent had been invalidated, uh, wasn't correct. And I won't go into the legal details today on that. But we walked out of the federal circuit, frankly, feeling good. We thought, ah, this is, this is a good argument. They was well received. The court seemed to understand, and we were fully expecting to be sent back to the PTAB. But instead, two days later, we got a one word ruling on the Rule 36, affirmed. And we don't know what was affirmed, why it was affirmed. I mean, we're clueless with that type of a ruling to understand, well, if we were to do it better next time, how do we do that? What, what is it we're doing better because we didn't do something according to that court properly? We have no clue. And, and candidly, it was after that happened, and I got a contact from our, our law firm who was, you know, working on that case. I said to them, this is so outrageous. How is this even possible that this could be legal? I mean, there's no due process here. And it was kind of a double jeopardy because frankly, we felt there was no due process at the PTAB. And then we go to the higher court and there's no due process there. And I said to the law firm at the time, I said, you know what? This is something the Supreme Court needs to hear. This is really going to knock the sail, the wind out of the sails of innovation in this country. Um, among other things that are happening, but this one to me was like a no brainer. So, um, that's how it happened. All right. So, crazy disheartening. Um, you obviously had decades invested into the critical technology. Lots of resources invested in your IP rights. You know, clearly massive legal efforts to go defending these rights. And then appealing their evaporation in front of the PTAB, um, and instead of a thorough review and detailed reasoning, which is what you're looking for after your, um, oral arguments, you get back that dreaded one word response void of any kind of opinion. So I mean, can you help us understand what is rule 36 and what is happening here in our judicial system? Yeah, no problem. Ashley. Rule 36 is a local rule that the Federal Circuit promulgated around 1989, sometime in the late 1980s. It's not entirely clear when. But the rule states that the Federal Circuit may issue a judgment of affirmance without opinion. Uh, it states in the quote, The court may enter a judgment of affirmance without opinion. Now the problem with that rule, is that it conflicts with Section 144 of the Patent Act, a statute that Congress passed in 1984. And this statute says that the Federal Circuit, upon its determination of an appeal from the PTAB, shall, quote, issue its mandate an opinion. An opinion is a long standing legal term of art that means a court's statement of reasons. So a one word judgment of affirmance under Federal Circuit Rule 36 is not an opinion. You know, just commentary on that too. I was trying to actually explain this to my, to my son, uh, elementary school kid. I told him that this was the, this was like the judicial equivalent of, you know, because I said so, right? Um, you know, Dennis, Dennis Crouch called it the Uh, you know the problem of invisible reasoning, um, but but I think I like the because I said so a little better Yeah, yeah Exactly, right. It is a because I said so, uh sort of judgment and now I thought I should make clear that the Federal Circuit is a hardworking institution. All Federal Judges work hard, uh, they're underpaid, they really deserve our utmost respect. But the issue here is really when the Federal Circuit issues a Rule 36. Summary Affirmance, uh, without issuing an opinion, it's violating a statute, and Congress had particular reasons when it enacted the statute. And the history really erases any doubt that Congress intentionally wanted the Appellate Court with jurisdiction over patent agency appeals to explain its reasoning. And to really make that clear, I'm happy to delve into the history, if of interest to you and your audience. Absolutely. And we're going to get there. I want to direct the question to Juliet though, first. Um, and that is, you know, Juliet, you are, you're no stranger to innovation or the problems plaguing, uh, inventors. We met at a USI conference where, um, you shared your unfortunate struggles with telebrands. Um, that's another inventor, inventor abuse topic, uh, on its own. And we'd love to have you back on the show sometime to fully discuss that. Uh, but from your 30 plus years as an inventor, how do practices like rule 36 harm inventors and innovation more broadly? Um, and how common is this practice? Uh, so Josh, first, I, I want to thank you very much for, uh, having us on today. And, uh, let me just correct one of your comments. It's actually Ontel, which is the sister company to Telebrands that is the main, uh, defendant in, in what I'm going through. Um, so. There's, there's so much to address here, right? Um, my, I haven't been a, an inventor specifically for 30 years. I have been a consumer products developer and my experience is primarily in the outdoor industry, the fashion industry, and, uh, what I would call I'm, I'm tech adjacent. So my big hit product, which happened to be my very first patent, uh, was, uh, a technology accessory. Um, after I got, I had my, my patents, uh, co opted, shall we say, by, by these people, um, I joined, uh, Fair Inventing, which is an organization that is trying very hard and, uh, thinking very hard about how to address these problems in the system and access to justice, uh, which is, is a big part of the problem here because we have naturally very big companies going after smaller companies. You know, that's a very common imbalance that we're discussing here. One of the things that really has struck me, uh, in my work with Fair Inventing is the amount of people that I have met that have been subject to a Rule 36. And, um, frankly, it is capricious. And cruel, these rulings, and, uh, you know, kind of morally repugnant in a lot of ways. So, I couldn't help but get excited to work on the cert petition with Amit, uh, in support of Parker Vision. Because this is just, it's got to be addressed. Um, I was joking yesterday that, I got a parking ticket recently in the city of Portland. The city of Portland gave me more reason and justification for dinging me 70 than Jeff got for the justification for losing his entire patent right and wiping out his business. And all the tertiary things that go with the business, the employees, the investors, all the other subsequent businesses that are affected by such a thing. So, I'm, I'm really happy to support this personally and Fair Inventing is of course much behind. To address your question about how common this is, I can't tell you. I think Ahmed has some data on how common it is. Um, it's much more common than we would even like to think. And, uh, I think what I bring to the table here in this discussion is the question of, of how this personally affects people, right? And one of my friends, Molly Metz, uh, was given a Rule 36, and we've discussed this in depth. And I think, uh, the word that she said to me that really hit home was the humiliation. And I, I think humiliation kind of wraps it up. One of the things that I've been thinking about, uh, as, as we go through this process of, of supporting the It's her petition is the, this question of merit. There's a lot of talk about merit these days, and it seems to me that because Parker Vision's technology was awarded a patent based on merit, based on a very arduous process that is complex and expensive, it's not easy to get a patent, uh, but there was no meritorious explanation of why it was taken away and what kind of magically happened. Between the time that he had demonstrated enough merit to get a patent and build the value of the technology and the time that it was taken away, well, obviously, it was, it created an immense amount of value that you can't just, it's just preposterous to, to take away someone's patent rights without it. It's a written explanation. It just boggles the mind. Doc, can I say something in addition to what Julia said about, uh, merit? Certainly. So when you think about getting a patent, you are, your patent application goes to a section of the patent office where the examiners who are looking at your patent are trained in the skill of the art of what you're dealing with. When you go to the PTAB, that is, I wouldn't say never the case, but I can say that in our situation, which is the only one I can relate to, and I've been to the PTAB numerous times, uh, we've never had, in the three judge panel, people who would be considered of skill of the art. They have backgrounds that are very general in this, maybe a certain, let's just say sciences. Uh, but not narrowed down to the specific science that's being dealt with. So when you lose a patent at the PTAB and it goes to the federal circuit and you're expecting to get another level of expertise in looking at what just happened and it results in this Rule 36 affirmed, it is just, it's hard to describe how unfair, infuriating, you know, uh, Juliet's correct. It's capricious, uh, at best. And that's why we were so, uh, frankly, just hell bent on seeing that the Supreme Court wouldn't look at this. I don't know any other way to say it. To me, this should be a relatively light lift to look at something this outrageous and say, I want to do something that will make our innovation economy in the United States better. We'll make it a little more predictable. Josh, can I underline something that Jeffrey just said here? Um, For sure. When you look at the, the patent system and, uh, what it takes to get a patent and build a business around your patented technology, I mean, everybody knows this is an extremely difficult undertaking, um, to have this component of the system that can so again, capriciously remove your rights around that patent is also. And I want to, I want to emphasize this, it's economically illiterate because what we're doing is destroying the path to our own innovation engine, right? It's, it's, we're hurting no one but ourselves and it absolutely makes no sense. Hugely self defeating. Uh, couldn't agree, couldn't agree more. Uh, Juliet mentioned that you had some, um, some numbers as well to sort of help put this in context. Uh. This isn't a, this isn't a rare occurrence that we're talking about, is it? No, it's not. The numbers bear out what Jeff and Julia are saying. This is a widespread recurrent problem. It has been for years. So let me just share my screen. So as you see, last year in 2024, the federal circuit issued a Rule 36 in 71 appeals from the PTO, 69 PTAB appeals, and 57 of those were from IPRs. And in contrast, it issued opinions in 94, uh, PTO appeals. And these, these numbers, uh, are relatively consistent. When you look at the number of Rule 36s in the last five year, five or so years, there are about 70 Rule 36s in, in PTO appeals. And this translates to a. Uh, rule 36 to opinion rate of about 43%. The real problem here is that many of these rule 36s are issued after an IPR in the PTAB has invalidated the patent. In fact, there's the date on that, uh, is also striking the federal circuit firms. 85 percent of PTAB invalidation decisions and 60 percent of those affirmances are done under Rule 36. And then if you go back and look at the PTAB and what's going on there, the PTAB in IPRs cancels at least one patent claim in about 83 percent of decisions and all claims in 67%. So what's happening is you have patent holders who have vested property rights in their patents, uh, in those, in those property rights. Are, uh, destroyed through the PTAB process, through the IPR, and then the Federal Circuit comes along and affirms without any explanation. So you have this patent holder who's lost property rights, uh, and given no judicial explanation why, no Article III court. Has given that patent holder any explanation, any opinion explaining the reasons why that patent holder has lost its property rights. I just want to jump in there for a second just to underscore kind of the end of what Amit was saying too. It's good for the audience to remember that the PTAB is an administrative body. And so when the federal circuit just says affirmed no opinion, you know, to Amit's point, you know, an article three court has not weighed in on the The reasoning, right, of this finding of invalidation, which is really, going back to your due process argument, really unfair for the patent holder. Yeah, that's, that's exactly right. In the PTAB process, uh, the patent holder does receive a decision, a written decision by the PTAB, but if, if a PTAB invalidates a patent and then the Federal Circuit issues a Rule 36, that patent holder is never given any explanation by an Article III court as to why this, uh, this property has been lost. And, and, and that's, that's a problem. Now, the Supreme Court in a decision called oil states did say that IPRs are constitutional, uh, and they're, and they're constitutional under Article 3, but when you look at this statute, which requires the Federal Circuit to issue an opinion, there is an argument that if, if an opinion isn't being issued, we're not entirely certain whether the Federal Circuit has passed it. Uh, reviewed the matter as comprehensively and as thoroughly as it as it otherwise would. And the reason is that the process of writing really clarifies thinking. It's really an integral part of the reasoning process, and if you're skipping that step, you might be resulting, you might be generating a judgment that you otherwise wouldn't have come to. So I always tell clients when you read an examiner's rejections, like you, you agree with them because it sounds compelling. And then when you do your own homework. You know, and you start to really look into it, that's where you start to tease apart things and actually find the disagreements, go through the writing process, find the disagreements, so there's very much some truth in that. So, uh, Jeff, you, you decided that, uh, enough was, enough was enough, uh, it's time to get the Supreme Court to, to weigh in. So, um, you work with, you work with Amit to file a petition for writ of certiorari with SCOTUS. I meant for the less, uh, Latin literate among us, can you tell us, uh, what the heck that means? And for the record, uh, I will accept any of the six documented variant pronunciations of that word as used by nine current justices and four recent justices. Gosh, you could even just call it cert, uh, and just avoid the issue entirely. So, we have sought cert in the, the Supreme Court. We're asking the court to grant review. Uh, of the question presented, and the question presented is simply whether, uh, the Federal Circuit's use of Rule 36 violates Section 144 of the Patent Act. And, uh, the way is, the way the process works is you, you file, uh, a cert petition in the Supreme Court, and then the Supreme Court, Decides whether to grant it. The grant rate is very low. So, uh, it's an uphill climb, but we're hopeful that the Supreme Court will understand that this is a, uh, recurrent issue in a widespread issue as, uh, as Juliet and Jeff have underscored it as the numbers prove. In fact, We now have two former Federal Circuit judges who agree that the Supreme Court should hear this issue and who agree with Parkervision's position on it. So, let me just read to you what Judge Paul Michel has said. He says, The Federal Circuit's regular practice of issuing judgments without opinions in appeals from PTAB reviews contravenes the literal terms of Section 144, which contains no exceptions and warrants immediate Supreme Court scrutiny. So he, he looks at the statute as we have, and he says that, look, there's the word opinion there. Opinion is a longstanding legal term of art. It means a statement of reasons. It's meant that for, for centuries, uh, and a rule 36, one word affirmance is not an opinion. Now Judge O'Malley also agrees that the Supreme Court should review this issue. And she looks at it from a slightly different perspective. Uh, she sees this as a due process problem. She says, IPRs provide few of the due process safeguards that guide district court proceedings, and appeals from those decisions provide fewer still. The burden of proof below in the mandated lenient standard of review on appeal are just a couple of the places where guardrails against unduly depriving a party of property rights break down in IPRs. In those cases, the federal circuit should provide greater oversight and assure that the rationale for its stamp of approval is clear. Where it would not be from the face of the record, more should be said, the Parker Vision case is of particular concern. So what Judge O'Malley is getting at is that these IPRs, uh, are suspect when it comes to due process. There are, there are a number of ways in which they deviate. Uh, from the typical procedures that we have in court, uh, for example, the, the PTAB panel members, uh, both decide whether to institute the IPR and, and make the ultimate determination on whether the patent should retain its validity. Uh, the PTAB panel members also receive performance based bonuses. And, uh, there are all these quirky procedures where even if the petitioner, that, that party that brought the challenge drops out of the proceeding, the proceeding continues and the PTAB analysts just take over the proceeding. Uh, so it's, it's very different from, uh, the way American litigation is supposed to work and it deviates from the principles of, uh, party presentation, justice, justice, stability, uh, standing and, and, and mootness that govern. Uh, legal proceedings in this country, though our argument is on the one hand that the statute means what it says, uh, section 144 requires an opinion. But even if there's any doubt about its meaning, uh, you, we should interpret it literally. We should. Interpret it to mean that the federal circuit must issue an opinion, because if you don't take that under interpretation, you end up in a situation where the PTAB is invalidating patents and they're, they're for depriving property owners of their vested property rights in already issued patents, and then no Article 3 court is providing any explanation why. And so no Article 3 court is providing an opinion. Uh, the reasoning process that could compensate for the due process shortcomings in the IPR. So we're, we're using what's called the Constitutional Doubt Canon of Statutory Interpretation as another reason why, uh, Section 144 should be interpreted, uh, to mean what it says, which is that the Federal Circuit should issue an opinion in PTAB appeals. And if that doesn't convince you, the history should erase any lingering doubt. The history makes clear that. Section 144 means that the appellate court with jurisdiction of patent agency appeals needs to say something. So, you know, it sounds like a minute you had said that, um, only about 1 percent of petitions are received. Are actually reviewed by the supreme court, right? And well that many are reviewed but the grant rate is very low Well, yeah, but yeah, it's about one percent. Um, so if it is accepted you obviously get a chance at a landmark decision Um, this is not the first time that rule 36 has been brought up though This is probably what about the fifth attempt that a rule 36 has been brought up to the supreme court Is that correct there have been uh It's several other attempts, but most of those other temps challenge rule 36 without connecting it to the statute. So those challenges go something to the effect of the federal circuit. You would be issuing opinions because there's a due process problem with not explaining your decisions, but that's not our argument. There are plenty of circumstances where it's perfectly fine for a court not to explain its reasoning. For example, when the Supreme Court denies cert. Uh, in 99 percent of cases, the Supreme Court doesn't explain why, and it shouldn't have to explain why. That would overburden the Supreme Court. The problem here, though, is that we have a statute that requires the Federal Circuit to explain its reasoning, and it's for a particular reason. It's because, without that statement of reasons, this patent holder is left with no judicial explanation why its property rights and already issued patents Um, uh, legal explanation. Let me give you a real world example, and I'm not suggesting this happened in our IPR. Okay, although I've had multiple IPRs. Um, so let's say that the PTAB makes this decision to invalidate your claims or your entire patent. Uh, and their reasoning is, you know, Uh, we heard the argument of the experts. Usually with an IPR, the experts come in and they weigh in on each party's position, right? Each party will hire an expert. And the, it's not uncommon to have the PTAB say, well, we've heard the argument of the experts and we've decided that the petitioner's expert was more persuasive. Full stop. Now, you go to the appellate court and you say, well, wait a minute, we don't understand why the PDAP thought that the petitioner's expert was more persuasive because our expert explained why these references couldn't be combined, why they were non obvious, you know, whatever the challenge is. You walk out of the appellate court and you get a Rule 36. Okay, here's what you know. Their expert was more persuasive according to the, uh, authorities. What was it that was more persuasive? How do I do it better next time? What's the feedback I give my expert to say the next time You're in a situation like this, and there's this argument of the experts, make sure you cover X, Y, or Z. You have no clue, no idea. It is a total, it's like, uh, you know, I, I liken it to the pin the tail on the donkey. You're blindfolded, you're spun around five times, good luck finding the donkey. Is that really the way we want to run our intellectual property system? That's one of the most valuable underpinnings of our, uh, advantage, our world advantage historically in leadership for technology and other. Innovations? It's crazy. Well, it leaves very little clarity for further appeal to in terms of the technical and legal understandings, even of the, even of the federal circuit, like there's a, there's a well documented case out there where, where a justice confused a web server with a, with a web page. Well, pretty important. distinction if you're deciding on the technical novelty of a, of a, you know, of a new invention. And so for that sort of level of transparency to not come out, um, in an, in an opinion that gives you some surface area to work with, uh, in the future, yeah, it's a huge from a, from a due due process perspective. And it gets into, you know, all the sort of the fifth amendment stuff that, um, you know, uh, I mean, it was, was, was, is getting at earlier. And Congress was onto this. I mean, Congress has realized since the early 1920s, when it first. Uh, created an appellate with specific patent jurisdiction that we need a court to explain the legal standards applicable to invention patents in order to engender a stable and predictable property rights framework and thereby inspire investment in innovation. I mean, Congress understood that the first step. In that process is to ensure that you have an appellate court that's really articulating the legal standards applicable to invention patents. And actually, I meant for the benefit of our audience, could you describe the difference between an opinion versus an order or a judgment? And, you know, how unambiguous are these terms, um, in the legal setting? Especially opinion. Yes. There's a, there's a fundamental difference between a decision and an opinion. And uh, let me give you the, the definition that Chief Judge Markey gave. Chief Judge Markey, who was the Chief Judge of the Court of Customs and Patent Appeals, uh, and the first Chief Judge of the Federal Circuit said this, there's a fundamental difference between a decision and an opinion. The decision is the egg. The opinion is the crowing about it. Affirmed, reversed, remanded, modified. That is the decision. The opinion is supposed to explain how the court got there. It may or may not do it well, but that is its function. So, in other words, the opinion is the court's statement of reasons for its decision. And, and the judgment is just the bottom line. Yeah, I, I think it's pretty compelling, um, in terms of the clarity of this argument around, uh, what section 144 says that, uh, TCL's opposition brief to your position didn't even push back on that central statutory interpretation question. Yeah, they sti they, they sidestepped the issue entirely, uh, they conceded the question presented. And in our view, the statutory text is clear. And the analysis need not go farther, but the history really erases any lingering doubt. And I mean, if we've looked at the history, uh, prior petitions on this issue didn't delve into it. Uh, but what we found is that in, in 1929, Congress transferred jurisdiction of patent office appeals from the court of appeals of the district of Columbia. Uh, which operated from 1893 to 1934, so it's not the D. C. Court of Appeals or the D. C. Circuit that we have today. And it transferred that jurisdiction to the Court of Customs Appeals. The Court of, uh, Customs Appeals, according to Congress, had little to do and the, the D. C. Court Uh, its docket had become too congested. Congress also saw value in, uh, quote, creating a highly technical court with special knowledge of patent matters to pass upon very important questions. And and so Congress said, you know, that it might be nice to take these, uh, these judges on the court of customs appeals and turn them into subject matter experts in patents. Uh, they also recognize that the judges on the Court of Customs Appeals were great writers. Uh, in fact, in, in, uh, a book by Judge Giles Rich on the history of the CCPA, he, uh, he goes into how the CCPA would churn out opinions, uh, one session after another. And really knew how to delve into legal issues, analyze legal, legal issues. And he thought that they would be well equipped to learn, uh, to learn patent law. So the first panel of CCPA judges recognized that it was their duty to really articulate the legal standards for invention patents. And one such judge, Judge Graham, says, The march of national progress in the arts depends upon a proper and sensible construction of these laws by the Patent Office and its appellate judicial tribunal. So Congress, understanding that this was the function of the CCPA, actually said the statute applicable to the C C C C C that the C C CA must render in writing an opinion from every case on appeal from the decision of the Patent Office. And the CCPA, in turn, for decades, really adhered to that statutory mandate. This article from 1932 by a commentator at the time actually says that rubber stamp decision making is not the way to go, is not what the CCPA is doing. Instead, the CCPA, uh, is issuing decisions that indicate a complete and thorough study of the related prior art and related court decisions and careful attention to an explanation of all the reasons which led to decision. So you see that there's this institutional norm, uh, in the CCPA of giving reasons for its decisions of issuing opinions. In fact When Chief Judge Markey became the chief judge of the CCPA, he over and over again said, uh, that every case has an opinion. He said that in 1974. Later, when he was on the federal circuit, uh, he said that we're going to continue this tradition. The court agreed at the outset to issue an opinion in every single case decided on the merits. Uh, he then repeated, The court supplies an opinion in every case, enabling losing counsel to know why he or she did not prevail. He then stated, As you know, the court issues an opinion in every case. And his colleague on the CCPA, Judge Rich, said the same thing. He says, An opinion of the court is filed in every case. Some are published, others are not. But either way, you get an opinion. Now, something that we found in our historical research, which was really striking and kind of amusing, Was that in 1973, Judge Rich, uh, noticed that other appellate courts around the country were occasionally utilizing summary affirmance mechanisms. And in his view, that just wouldn't work with the, the CCPA. Because the CCPA's mandate, as I said, was to articulate the legal standards applicable to invention patents, so that inventors knew. Uh, what the scope of their, their property rights were and to inspire investment in innovation. So in 1973, Judge Rich, uh, distribute this, this sarcastic summary affirmance to his fellow panelists on a pending appeal. Uh, and he, as you see here, he says, this is a test. Uh, What are you gonna do when you get this opinion? How do you know whether the result is right? See, number seven, Will the appellants and their attorney think that their case had received full consideration? What will they be saying about the CCPA? Uh, out in California or up in Connecticut? Uh, number nine, Has any issue in the appeal been overlooked? Is there more than one? If so, what was it? And the most important, for our purposes, is question four. Is this an opinion within the meaning of the statute? And that's the same question presented in our cert petition. Is a summary affirmance like this an opinion within the meaning of the statute? The answer is clearly no. It was so obviously no to Judge Rich that he posed it sarcastically. And I think even if you're not Uh, convinced, uh, by the, the pure statutory argument, by the argument that an opinion is a longstanding legal term of art and the analysis should end there. If you, uh, couple that argument with the history, with the history which shows that the, the Federal Circuit's predecessor and the Federal Circuit, uh, have both been committed to this institutional norm of reason giving. For decades, then I think the conclusion is unavoidable that the Federal Circuit needs to stop issuing Rule 36s and appeals from the PTAB. Now, another really remarkable finding from our historical research is that when the Federal Circuit was created in 1982, Congress scrapped all the statutes that related to the CCPA. And so the reason given giving requirement that I referred to earlier. It was no longer on the books. Very quickly after the Federal Circuit was created, Congress started to, uh, convene hearings to sort of fine tune the court that they had just created. And, uh, they decided to add Section 144, uh, in particular, the language that we've been focusing on. They, they decided to add, uh, a requirement that the Federal Circuit shall issue a mandate and opinion in every appeal, uh, from the Patent Agency. Now, Guess who introduced that phrase? Guess who was the person who suggested that the Federal Circuit issue an opinion? Uh, it was Chief Judge Markey. It was the same person who has over and over again said that there's a difference between a decision and an opinion. That the court will, in every case, issue an opinion. In fact, Justice Scalia, uh, after Chief Judge Markey, Uh, Markey passed away, uh, wrote a really brilliant tribute, which is in the, the Marshall Review of Intellectual Property Law, uh, where he commended Chief Judge Markey for developing a unified body of law, uh, through his opinions. He commended Chief Judge Markey for really understanding the importance of judicial opinions. So if you had any doubt that Congress was instituting, uh, a reason giving directive through such Section 144. You no longer should have that doubt when you realize that it was Chief Judge Markey who introduced that phrase. Yeah, you know, we didn't talk about the Supreme Court only granting cert on, you know, 1 percent of these things. But, you know, in addition to like a very rich, uh, historical breadcrumb trail, uh, with incredible bridging and continuity, uh, that you, you've so nicely laid out there, you know, a lot of, a lot of these cases are, are super nuanced and it's, it's really sort of like hard to distill them. You know, down, down to an essence, but I kind of thought it's, it's interesting, you know, title 35, one 44 explicit requires the federal circuit to issue, uh, the director, its mandate and opinion. There's that word in appeals of the patent office, as you've explained to us, the word opinion is a legal term of the art that unambiguously requires a court to explain its reasoning rule 36 is title. Is judgment of affirmance without opinion. So it's called it's title contradicts its statutory mandate and judges are not free to overlook statutory commands. So, you know, if SCOTUS takes this up, it seems like you have a pretty solid case. Like, you know, a lot of these issues can be really nuanced. You know, if, when you're looking at this through the lens of 144. Um, this one seems pretty black and white, you know, unless they do something like, you know, uh, try to redefine the word any, uh, again, but, you know, I think, I think you've got a really solid case here. You know, Josh, as you're saying this, what pops into my mind is maybe we should title this brief, Yes, We Have No Opinion. Yeah, it's, that's a great title, really suits the podcast. PerkerVision, no opinion. In fact, uh, we had a tremendous amount of Amex support, which we're thankful for. But it also signals that this issue has reached a tipping point. And in one of the briefs, uh, the, the brief actually by, uh, Fair Inventing Fund. It was our brief. Yeah. Yeah. Juliet's group, uh, that was drafted by, uh, my friend Eugene Sokoloff at Molo Lampkin. Uh, they had this great idea. Where they have, uh, the first page of their argument says that the petition should be granted. Then the rest of the page is blank. And then the next, the next page says, That wasn't very satisfying, was it? And so it's a, it's just a great amicus brief that really drives home the point that reasoning is critical. Uh, you can't just skip that step. Uh, we also had an amicus brief from Professor Mary Ann Glendon, uh, who was my property professor at Harvard Law School, and who's just a brilliant scholar. And she explains the purpose and the importance of reason giving, uh, in this way. She says, And this is from her book, A Nation Under Lawyers, from 1984, which is just a fantastic, uh, 1994, excuse me. It's a fantastic book. She's a brilliant writer. Uh, it's, it's still relevant today. And she says, a common response to heavier workloads, Uh, is sometimes to decide routine cases summarily without opinion. Since no lawsuit is routine to those involved, a litigant who gets a mere thumbs down may understandably feel frustrated and resentful. She goes on to say that this sort of time and labor saving practice flies in the face of what judging is all about. Judges, more than any other officials, are expected not only to listen, but to show that they have listened. Not only to reason their way through to the decisions they reach, But to expose their reasoning processes to the parties and the public. And then she says, The discipline of writing out the reasons for a decision and responding to the main arguments of the losing side has proved to be one of the most effective curbs on arbitrary judicial power ever devised. And that's really why this, this issue is, is so important. It's not only this little arcane procedural patent issue. It, it goes to elemental principles of, of property rights, uh, and of dignity. Really, what we, we have is a situation where patent holders, uh, are deprived of vested property rights in already issued patents and then denied any judicial explanation why, which is an affront to their, their dignity. Well said. Yeah, couldn't agree more. Well said for sure. Um, and dignity and due process are both two things that I want, I do want to go a little bit deeper on. Um, but you, you, you had another word in their workload that I just, I want to, I want to direct this question to everyone. Um, and it's, it's a little bit tangential to this, but I think it's, I think it's important. And that is that, um, do you think that some of this is a little bit of a symptom of a larger problem also, which is the, the PTAB broadly? I asked, I asked Professor Adam Mossoff about this, and he said that while it definitely seems like the federal circuit is abusing Rule 36, uh, and issuing so many decisions, he thinks it's also a byproduct of the fact that the Fed's circuit is swapped with PTAB cases, which the advocates of the PTAB said was never going to happen. But, you know, now it is the vector for predatory efficient infringement. And the Federal Circuit is now abusing Rule 36, basically as a docket management tool in response. And, you know, I'm not looking to justify bad behavior here. More a case of like, yes, uh, we need to fix this issue clearly. But is this issue a symptom or is it a root cause? On the docket management issue, what we found is that, uh, people claim that it would just overwhelm the Federal Circuit. Uh, if it had to issue opinions in all these PTAB cases, uh, but they make that claim without any reference to the numbers and, and the numbers, which I shared with your audience earlier, the numbers show that last year, for example, there were 36, uh, excuse me, uh, 69 Rule 36s in PTAB appeals and 57 Rule 36s in IPRs. An opinion doesn't have to be 60 pages. It doesn't have to be 30 pages. An opinion can be a paragraph. Here in New York, our appellate division often issues these, these one paragraph opinions. And sometimes parties complain that that's, that's not enough. But it's still, it's still something. And it still gives you an understanding of What the court was thinking and and you get to see the court's reasoning and your your dignity is respected and besides Dignity and accountability transparency and legitimacy and all the other values of reason giving I want to emphasize one other and that's accuracy writing improves thinking the process of having to write out your reasons and Increases the quality of your decision making and and there are a lot of reasons for this, but I think one is based in cognitive science. I mean, the human mind, uh, is not truth tropic. It's not designed to generate empirically true beliefs about the world and and. Humans have developed all sorts of institutions and tools to help them go about the world and gain justified true beliefs. One of those is science. We're all scientists here. One of those is adopting a scientific attitude of intellectual humility and being curious and questioning things and testing things. Another is a scientific method of testing falsifiable hypotheses. But an important toolkit Uh, that humanity has developed is the process of writing. When you write, you're able to really discipline your, your reasoning and your thinking. And so, I don't think that we can assume that if the Federal Circuit, after its judgment, were, if the Federal Circuit were forced to write out its reasons for these judgments, I don't think we can assume that it would reach the same result. As a judicial law clerk, in fact, there were situations where I was tasked with writing a bench memo. Or a graphing an opinion, uh, for the judge, uh, that I clerked for, Judge Ed Prado of the Fifth Circuit, just a wonderful man, uh, he, and, and, but there are times when I would set out to start, uh, to write, uh, the document and then realize that it, it just won't write. There are, there are threshold barriers that we had missed. Uh, there were these roadblocks to getting to the judgment that the panel had initially settled on after oral argument. And those roadblocks only emerged from the process of having to write out, having to spell out the reasoning for that initial judgment. So, uh, reason giving has all sorts of beneficial functions, but a very important one is that it makes sure that the judgment is accurate. Yeah, I mean, I know I've changed my own opinion on things, just drafting thoroughly through something on it, or at the very least, you know, how I, how I talk about it. Um, and. You know, I think when it comes to like sacred constitutional protections, like amendments in the bill of rights, and when we're thinking about like, what are we going to value in, you know, our, our legal system? Like, even if, even if we're going to, even if we're going to talk about the workload side of it, you know, should efficiency ever went out over transparency and accountability? I don't think, I don't think so. It shouldn't, that's not even a problem in our case because I don't think it would. Uh, be unmanageable for the federal circuit to issue 70 more paragraphs, uh, each year than it has been. So as someone from the general public looking in, um, you know, someone who's not steeped in patent law, some of this might still feel a little in the weeds in terms of why they should care. In reviewing everything out there in this case, I think it comes down to two fundamental issues, and that's due process and dignity. And those are two core issues that should matter to everyone. So I'm going to start with Jeff and Julia and dignity. And then, I mean, I have a specific question for you on due process, uh, and a very fundamental legal issue, uh, embedded in all of this. Jeff and Julia, can you talk about the importance of judicial respect and the dignity of a reasoned explanation for patent owners who have had their rights stripped away? Ilya, you want to start? So, I think, uh, you hit on something really important, Josh. You said, you said the word sacred. And I think, I think you cannot emphasize more the connection between how we view this system as a, as a, uh, a sacred process and something that we can entrust our entire lives and the labor of our minds in. Thank you. And. The betrayal that you feel and the humiliation when you are treated in such an undignified manner. And I just don't, you know, as to put out the lay person's argument here with respect to the court, I don't understand how rule rule 36 rulings, uh, underline our belief and support. And the embedded merit that we assume is it in our system. I just don't understand that it's anything but a complete contradiction. That's all I have to say on that point. So, Josh, I'll give you a little anecdote. Um, the two lead inventors on our technology that have been challenged, uh, give me a phrase from time to time, and there's a little bit to unpack in this, but the phrase is, Jeff, I never realized that the law of physics stops at the courthouse stairs. The reason there's a little bit to unpack there is because what they're really saying is nobody's appreciative in that courthouse of the weekends, the years, the labor, the difficulty, the challenges that they had to overcome for these inventions to actually be inventions. Nobody thinks about the amount of sacrifice that inventors who really make breakthroughs had to put in. And so to have this type of just disrespect to the whole process is, um, you know, I think they say it well. I didn't realize the law of physics stops at the courthouse stairs. It says it all. Yeah, I mean, it really has a, it really has a chilling effect, doesn't it? Uh, and On, on those inventors on, you know, investors who might invest in, in this tech, in this technology. Um, gosh, I've had the good fortune. I've had the good fortune of starting three companies. There's a fourth company that I feel like I might have enough energy to do one more in my career, but the hesitation that I have. And we have the invention. We know what we want to do, but we don't know if we can protect it. And we're all sitting around, uh, the table talking about this going, do we really want to put this time and effort, risk capital up without knowing that it's actually protected, that large companies can just come along and cherry pick your ideas that have been vetted. Um. are ready to go and you have very little hope for a positive outcome in terms of defending that intellectual property against someone who's perhaps better financed, has a, has a brand already in the marketplace. I mean, this is, this is the complete antithesis to what the founding fathers who wrote our system into the constitution. The constitution is not in some amendment in the original constitution. The concept being, if we want to have a country that's not a country of kings and queens, let's give common people an opportunity to own something from the work and toil of their own minds, of their own creativity. And I'm watching that just being ripped right out of my partners, who I've worked with for decades now, who were so enthusiastic to bring new ideas. And they've even said to me, Well, do we have to do it in the United States? Think about that. That is profound. It is. We, we, we, we talk about, we talk about patenting being a, a cornerstone of innovation and it's a theme that I try to like really continue to, to weave through what we do and a drum we continue to continue to pound, um, because it's, it's the. It's the one thing that I, more people need to understand if we're going to make intelligent decisions about our, about our future. And I mean, Jeff has a story you told. I mean, that's the, that's the real life living manifestation of, of, of that. So, um, well, and from the bigger picture issue as a nation, we cannot be a world leader with a lagging innovation economy. If you want to be a world leader, you better have a leading innovation economy. And this rule 36. It's just one small but important step toward taking the system back in the right direction. It has gone in the wrong direction long enough, it would be a really wonderful day to see our Supreme Court say, you know what, the very least we can do is make sure that you know why your patent was rejected. Invalidated. So, you know, what to do going forward today, it's just a guessing game. So that's a great segue, perfect segue to what I want to ask a minute about this. So, you know, like to talk about the fundamentals of the legal issue at play and the net effect of the ruling. that you're working toward. So to set this up, I want to share one of the comments I read in a post about your petition. I thought this was interesting. The reader asked, he says, How are appellant's clients going to win more Federal Circuit decisions by eliminating Rule 36 decisions and making the three panel judges spell out that they agree with the decision below and were not impressed with any of the appellant's brief and arguments. So I think he's essentially asking, is the judicial equivalent of ditto, does that really need further explanation? But my question is, is the fed circuit saying affirmed something like saying ditto to the lower ruling or does affirmed mean something else? And second part, can you help listeners understand why judicial reasoning is key to what makes a court decision a valid court decision? Josh, that's a great question. So when the Federal Circuit issues a Rule 36, the Federal Circuit itself has held that it's only endorsing the bottom line. It's not adopting the reasoning of the PTAB. In fact, in a case called, uh, Phil Insull Corporation, uh, by the Federal Circuit from 2017. It held, the Federal Circuit held that a summary affirmance, quote, simply confirms, uh, that the body below entered the correct judgment and does not endorse or reject any specific part of the reasoning under review. So a Rule 36 doesn't mean see below, it means, uh, it means all that it says, which is affirmed. And so parties often fight about what that means. Uh, and then. strategically pick and choose, uh, portions of the, the PTAB decision below, claiming that this is actually what the federal circuit was affir, was affirming and other parties, uh, claimed the opposite. So it, it, it, It injects confusion into patent law, which contravenes the purpose of both the CCPA and the federal circuit, which was to unify patent law, to bring predictability and stability to patent law. Yeah, absolutely. So, what are the next steps then with SCOTUS? When will we know if they're going to take the case and what options does the court have for righting the wrongs here? Uh, the next steps are for the court to confer about our petition that will likely happen later this month. Uh, if the court grants review, then we're on to the merits and we'll fully brief this issue and the court and, and as with the other side, and we, we might actually get an argument from the other side on the merits of this issue, which we haven't gotten at the cert stage. Uh, and then the court can decide on a fully developed record whether rule 36 in PTAB appeals violates section 144. And, and fittingly, then parties who had been rule 36, we'll, uh, at least have the dignity of an explanation as to why, uh, rule 36 was, uh, Was validly applied to them. Excellent. So, um, I think we're getting close to the time we have today. Uh, Jeff, Matt, Juliet, any closing thoughts? None for me, Josh. I just, as I said before, I feel like this is a, uh, uh, a really, uh, compelling situation that the Supreme Court could show some respect and love to our innovators. And provide the dignity that we've talked about to those people who are hardworking and really make a lot of our country, uh, the leadership, pleasant, wonderful place that it is to live in, um, you know, show that they're supportive of that. On behalf of Fair Inventing, we are all in on this argument and support of the inventors and addressing the problem here with Rule 36. I'll close by, uh, Referencing a great book by Professor Jonathan Barnett called The Big Steal. And you'll see there that he's really compiled empirical evidence to support everything that Jeff and Juliet have been saying about what's happening to the patent system in this country. He says that large technology companies have created an institutional environment in the United States. Where the enforcement of IP rights is a challenging and often futile endeavor, especially for patent owners with limited resources. And this Rule 36 problem exacerbates the imbalance of power. Though we're hopeful that the court grants review, although prior cert petitions raised this issue, they didn't raise this issue in this way. They didn't focus on the statute. They didn't invoke the constitutional doubt canon. Nor did they detail the historical context. Uh, we've seen no prior cert petition that mentions this test affirmance by Judge Rich or the fact that Chief Judge Markey was the source of the phrase mandate and opinion in section 144. On top of that, the petition is received. The support of 13 amici across nine briefs, and no private petitioner received that much support. So I think this issue has reached a tipping point. It's not going away, uh, and the one way to make it go away would be to grant cert and provide some clarity on what Section 144 in the context of Rule 36 really means. Yeah, we truly need to get back to a gold standard patent system. And that means strong, reliable, and predictable patent rights. And this particular issue is really at the center of all of that. So, um, I thank you all for your time today. And even more importantly for everything you're doing in the trenches, uh, on behalf of practitioners and inventors. Everywhere, doc, and thank you for giving us the opportunity to get our story out to a broader audience. Absolutely. Thank you. Our, our pleasure. We, um, we know you have a lot of work to do, uh, in the, in the days and weeks ahead. Um, so we're gonna be, we're gonna be rooting for you from the sidelines for sure. Thanks, Josh. Alright, that's all for today, folks. But if you're wondering what you can do to help, you can always write your legislators should the courts let us down here. But in the meantime, you can do what we're doing, and that's sharing these concerns and the very real human stories behind them to help raise broader public awareness. Please like, subscribe, and more importantly, share. This matters for us, and it really matters for our kids. Thanks for listening, and remember to check us out at aurorapatents. com for more great podcasts, blogs, and videos covering all things patent strategy. And if you're an agent or attorney and would like to be part of the discussion, or an inventor with a topic you'd like to hear discussed, email us at podcasts at aurorapatents. com. Do remember that this podcast does not constitute legal advice, and until next time, keep calm and patent on.
