[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
THE PATENT TRIAL AND APPEAL BOARD AFTER
10 YEARS, PART II: IMPLICATIONS OF
ADJUDICATING IN AN AGENCY SETTING
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HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, INTELLECTUAL
PROPERTY, AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
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THURSDAY, JULY 21, 2022
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Serial No. 117-75
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
49-782 WASHINGTON : 2022
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
AMY RUTKIN, Majority Staff Director and Chief of Staff
CHRISTOPHER HIXON, Minority Staff Director
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SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
THE INTERNET
HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
MONDAIRE JONES, New York, Vice-Chair
THEODORE E. DEUTCH, Florida DARRELL ISSA, California, Ranking
HAKEEM JEFFRIES, New York Member
TED LIEU, California STEVE CHABOT, Ohio
GREG STANTON, Arizona LOUIS GOHMERT, Texas
ZOE LOFGREN, California MATT GAETZ, Florida
STEVE COHEN, Tennessee MIKE JOHNSON, Louisiana
KAREN BASS, California TOM TIFFANY, Wisconsin
ERIC SWALWELL, California THOMAS MASSIE, Kentucky
MONDAIRE JONES, New York DAN BISHOP, North Carolina
DEBORAH ROSS, North Carolina MICHELLE FISCHBACH, Michigan
JOE NEGUSE, Colorado SCOTT FITZGERALD, Wisconsin
CLIFF BENTZ, Oregon
JAMIE SIMPSON, Chief Counsel
BETSY FERGUSON, Senior Counsel
C O N T E N T S
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Thursday, July 21, 2022
Page
OPENING STATEMENTS
The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the
Subcommittee on Courts, Intellectual Property, and the Internet
from the State of Georgia...................................... 2
The Honorable Darrell Issa, Ranking Member of the Subcommittee on
Courts, Intellectual Property, and the Internet from the State
of California.................................................. 3
WITNESSES
Candice Wright, Director, Science, Technology Assessment, and
Analytics Team, U.S. Government Accountability Office
Oral Testimony................................................. 116
Prepared Testimony............................................. 118
James Donald Smith, Chief Intellectual Property Counsel, Ecolab
Oral Testimony................................................. 143
Prepared Testimony............................................. 145
Michael Asimow, Dean's Executive Professor of Law, Santa Clara
University School of Law
Oral Testimony................................................. 148
Prepared Testimony............................................. 150
Richard Torczon, Senior Counsel, Wilson Sonsini Goodrich & Rosati
Oral Testimony................................................. 157
Prepared Testimony............................................. 159
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Materials submitted by the Honorable Darrell Issa, Ranking Member
of the Subcommittee on Courts, Intellectual Property, and the
Internet from the State of California, for the record
A list of decisions made under Andrei Iancu, Former Director,
U.S. Patent and Trademark Office............................. 8
An article entitled, ``The Origins of Judicial Deference to
Executive Interpretation,'' The Yale Law Journal............. 12
Materials submitted by the Honorable Hank Johnson, Chair of the
Subcommittee on Courts, Intellectual Property, and the Internet
from the State of Georgia, for the record
A letter from Andrew Fois, Chairman, Administrative Conference
of the United States......................................... 110
A letter from Katherine K. Vidal, Under Secretary of Commerce
for Intellectual Property; Director, United States Patent and
Trademark Office............................................. 114
Materials submitted by the Honorable Thomas Massie, a Member of
the Subcommittee on Courts, Intellectual Property, and the
Internet from the State of Kentucky, for the record
An article entitled, ``The Pecuniary Interests of PTAB Judges--
Empirical Analysis Relating Bonus Awards to Decisions in AIA
Trials,'' SSRN............................................... 182
An article entitled, ``How Google and Big Tech Killed the U.S.
Patent System,'' IPWatchdog.................................. 296
An article entitled, ``USPTO response to FOIA confirms there
are no Rules of Judicial Conduct for PTAB Judges,''
IPWatchdog................................................... 305
Text of the Seventh Amendment to the Constitution.............. 310
APPENDIX
A letter from Morgan W. Reed, President, ACT | The App
Association, submitted by the Honorable Darrell Issa, Ranking
Member of the Subcommittee on Courts, Intellectual Property,
and the Internet from the State of California, for the record.. 314
QUESTIONS AND RESPONSES FOR THE RECORD
Questions for the witnesses submitted by the Honorable Zoe
Lofgren, a Member of the Subcommittee on Courts, Intellectual
Property, and the Internet from the State of California, for
the record..................................................... 318
Response from Candice Wright, Director, Science, Technology
Assessment, and Analytics Team, U.S. Government Accountability
Office, submitted by the Honorable Zoe Lofgren, a Member of the
Subcommittee on Courts, Intellectual Property, and the Internet
from the State of California, for the record................... 319
Response from Michael Asimow, Dean's Executive Professor of Law,
Santa Clara University School of Law, submitted by the
Honorable Zoe Lofgren, a Member of the Subcommittee on Courts,
Intellectual Property, and the Internet from the State of
California, for the record..................................... 321
THE PATENT TRIAL AND APPEAL BOARD
AFTER 10 YEARS, PART II: IMPLICATIONS
OF ADJUDICATING IN AN AGENCY SETTING
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Thursday, July 21, 2022
House of Representatives
Subcommittee on Courts, Intellectual Property,
and the Internet
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to call, at 10:03 a.m., in
Room 2141, Rayburn House Office Building, Hon. Hank Johnson
[Chair of the Subcommittee] presiding.
Members present: Representatives Johnson of Georgia,
Stanton, Ross, Issa, Jordan, Gohmert, Gaetz, Tiffany, Massie,
Bishop, Fischbach, and Bentz.
Staff present: John Doty, Senior Advisor and Deputy Staff
Director; David Greengrass, Senior Counsel; Moh Sharma,
Director of Member Services and Outreach & Policy Advisor;
Cierra Fontenot, Chief Clerk; Gabriel Barnett, Professional
Staff Member; Casey Lee, Staff Assistant; Jamie Simpson, Chief
Counsel for Courts & IP; Atarah McCoy, Professional Staff
Member/Legislative Aide for Courts & IP; David Brewer, Minority
Deputy Staff Director; Ella Yates, Minority Member Services
Director; Andrea Woodard, Minority Professional Staff Member;
and John Lee, Minority USSS Detailee.
Mr. Johnson of Georgia. [Presiding.] The Subcommittee will
come to order.
Without objection, the Chair is authorized to declare
recesses of the Subcommittee at any time.
Welcome to this morning's hearing on ``The Patent Trial and
Appeal Board After 10 Years, Part II: Implications of
Adjudicating in an Agency Setting.''
Before we begin, I would like to remind the Members that we
have established an email chain and distribution list dedicated
to circulating exhibits, motions, or other written materials
that the Members might want to offer as part of our hearing
today. If you would like to submit materials, please send them
to the email address that has been previously distributed to
your offices, and we will circulate the materials to Members
and staff as quickly as we can.
I would like to ask all Members to please mute your
microphones when you are not speaking. This will help prevent
feedback and other technical issues, and you may unmute
yourself anytime you seek recognition.
I will now recognize myself for an opening statement.
Welcome again to this morning's hearing on the PTAB. This
hearing is called Part II because it is the second in a series
of hearings this Committee is conducting on the PTAB. In our
first hearing we held last month, we explored the impact of the
PTAB on innovation and small businesses.
Today, we will hear testimony about the decision-making
processes of the PTAB and whether the PTAB's placement within a
larger organizational structure of the United States Patent and
Trademark Office affects its decision-making processes. In
particular, we will explore whether parties that appear before
the PTAB are provided with a forum that has the due process
protections normally associated with adjudicatory decision-
making.
As we heard at our previous hearing, the PTAB is one of the
busiest forums in the United States for litigating the validity
of a patent. The PTAB conducts trial-like proceedings pursuant
to the 2011 Leahy-Smith America Invents Act, or the AIA. The
most popular proceeding is called an inter partes review.
Congress intended for inter partes review to be faster and more
efficient than district court litigation to address the
technical question of whether a patent claims a new and non-
obvious advance over the prior art.
AIA proceedings before the PTAB could involve patents that
are worth sometimes billions of dollars. For this reason, it is
imperative that the parties who go before the PTAB are ensured
due process and transparent treatment. Parties can get a fair
hearing only if the judges presiding over that hearing are
themselves free from bias and undue influence.
The judges who preside over AIA proceedings before the PTAB
are called Administrative Patent Judges, or APJs. APJs have
expertise not only in patent law, but also in various
technologies. This makes APJs well-situated to handle the
technical aspects of patent validity.
We have heard, however, troubling reports that APJs are not
always free to make decisions in an independent manner, based
on the evidentiary record and relevant legal authority.
Instead, as I anticipate today's hearing will show, APJs are
often subject to influence in their decision-making from
higher-ups at the USPTO.
In my view, such influence is in tension with Congress'
intent in creating the PTAB, where the decision-making was
explicitly assigned to a three-judge panel meant to be
insulated from outside influence. This type of influence would
also violate several norms usually assumed to apply in an
adjudicatory context, such as a prohibition on ex parte
communication and a party's right to know the decisionmaker's
identity.
About a year ago, Ranking Member Issa and I asked the
Government Accountability Office to investigate allegations of
interference in PTAB decision-making. Today, we will hear the
GAO's preliminary findings for the first time. I anticipate
that the GAO's testimony will confirm that some of our concerns
about due process and transparency before the PTAB are
warranted.
In United States v. Arthrex, the Supreme Court held that
the structure of the PTAB violated the Constitution's
Appointments Clause. The Court concluded that the
constitutional violation could be remedied by giving the
Director the authority to change the outcome of any proceeding
by striking the portion of the Patent Act granting exclusive
ability to grant rehearings to the PTAB. The Court did so
because it concluded that the Appointments Clause requires a
transparent decision for which a politically accountable
officer must take responsibility.
I recognize that, in the 10 years since the AIA has been
enacted, the PTAB had to grow quickly to handle the onslaught
of cases that were being filed. I understand that it is
difficult from a managerial perspective to obtain consistency
among so many judges on important questions relating to the new
AIA laws. Nevertheless, as the Supreme Court observed in
Arthrex, a director's unfettered political control over the
pre-issuance decisions of APJs is problematic, and although the
Court appeared to fix the Appointments Clause problem, it left
open the question of whether director control violates the
Constitution's requirements for due process.
Thus, I believe it is Congress' responsibility to consider
whether a legislative fix to the PTAB's structure, one that
preserves both due process and transparency for the parties and
freedom from influence for APJs, is needed. This hearing will
provide us with facts, so that we can Act to provide a sensible
solution.
I am pleased that we have a panel of government experts,
legal scholars, and distinguished practitioners. Thank you all
for being here today, and I look forward to your testimony.
It is now my pleasure to recognize the Ranking Member of
the Subcommittee, the gentleman from California, Mr. Issa, for
his opening statement.
Mr. Issa. Thank you, Mr. Chair. Thank you for holding this
important hearing today.
Members of the Subcommittee and participants do understand
that no matter where you are on other portions of current
patent law, it is undeniable and agreed by all us that PTAB has
a major role, not only in what a patent means when it comes
before the court, but the very existence of that court has
changed the prosecution process. When someone is looking at
asking for claims, they think about their claim construction
relative to what would happen if they asserted it and went
before the PTAB.
All of this is affecting the quality in a positive way of
patents being issued as we speak, but it continues to be very
concerning that this was intended to be an open and transparent
process. Its predecessor, which still exists, the ex parte
reexam, was never open and transparent. An opponent would
submit to the Patent Office what they believed was information
that could and should strike portions of the patent or all of
it, based on allegations often made by the patent owner. Then,
behind closed doors, in literally an unrecorded meeting in some
cases, the patent holder would come in and say, ``No, that
isn't the case,'' and that would be the end of it.
As a result, ex parte reexaminations often were not used
because an adverse outcome, even one that was incorrect, was
neither appealable nor could you get into an Article III case
and not be stuck with the fact that there was a presumption
that the Patent Office, basically, got it right.
So, in an ex parte reexamination, at its best, it must be
open and transparent. The arguments must be heard by both
sides, and the decision must, in fact, be based on the facts
presented. Unfortunately, it has now come to our attention
that, during the entire last administration, and perhaps even
before, there was a behind-closed-doors process, one in which
preliminary decisions would be brought to the administrator and
decisions would be reversed without ever having a public
hearing--without the light of day.
This process has created a host of questions, and the Chair
alluded to them. We want due process. We want transparency. To
get both, we are going to have to make changes in the current
system. There are a lot of possibilities, not the least of
which is to prohibit the reviewing officer from working in an
ex parte fashion and make all their correspondence in real time
available. That may be unwieldy, but certainly we have to
consider it.
I think, additionally, when I joined with the Chair last
year in asking for the GAO to conduct an investigation, we did
so because we had had allegations, but not substantiation. In
looking at the preliminary report, I find the GAO's
investigation to be disturbing. They indicate that bureaucrats
in the agency leadership, led by the Director himself, have
improperly influenced or altered decisions by PTAB Judges in
secret--without transparency and, in my opinion, without due
process.
In those cases, the parties involved had no idea that the
Director or others were meddling in their case. There was no
process to know that it went through a director review. The
parties were given no explanation and had no opportunity to
address the Director or anyone else in the decision process.
The parties could not even point out and go to court to appeal
the Director's decision, even if it was wrong and done in
secret. In fact, one of the challenges with administrative
review of this sort is that it does not have the ordinary
appeal process.
I have before me--and I apologize, it is a partial stack;
we ran out of paper in the printer--I have before me just some
of the Director's decisions that were made that we now have as
what I would call improper rulemaking. I want to talk about
that just briefly.
We have a process for making rules. Those rules are subject
to review by Congress. The fact is we make the laws; they make
the rules. We review the rules to make sure they are consistent
with the law. None of this and more is subject to that because
it evaded the rulemaking process.
As we go through the GAO study, it is likely that we will
speak to the new Director specifically on reversing some of
these or setting them aside, simply because they violated the
current law on rulemaking. That is unfortunate. You should not
have decisions made one way under one administration and
reversed on the other. You should not rely on rules that have
been made, and then, see them set aside. Unless the process is
open and transparent, you will have that.
I want to personally thank more than 200 Administrative Law
Judges at PTAB for the hard work they do. They are qualified
and their decisions have stood the test of review at the
Federal Circuit, and even at the Supreme Court, far more than
even Article III Judges.
So, today, I know we will hear people that are for and
against the existence of PTAB, but I think what we have to
concentrate on is those people who are doing their job need to
either be supported by the process or, if opposed, it has to be
in an open and transparent way.
So, Mr. Chair, I would ask unanimous consent that these
documents be placed in the record. Additionally, would ask
unanimous consent that an article, ``The Origins of Judicial
Deference to Executive Interpretation'' in The Yale Law Journal
also be placed in, as a document that I believe will help us in
understanding why this deference needs to be properly
administered or, in the alternative, that we set them aside.
Mr. Johnson of Georgia. Without objection.
[The information follows:]
MR. ISSA FOR THE RECORD
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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Issa. Thank you. I would yield back.
Mr. Johnson of Georgia. I thank the gentleman.
Without objection, all other opening statements will be
included in the record.
I will now introduce the panel of Witnesses.
Candice Wright is the Director of the U.S. Government
Accountability Office's Science, Technology Assessment, and
Analytics team. She oversees the GAO's work on federally funded
research, intellectual property protection and management, and
Federal efforts to help commercialize innovative technologies
and enhance U.S. economic competitiveness.
Before joining the GAO, Ms. Wright worked in the private
sector in a variety of human capital consulting roles and has
led engagements examining Federal contracting, risk to the
defense supplier base, foreign military sales, and homeland
security. She holds a Master's of Public Policy from Carnegie
Melon University and a BA in management from Bentley College.
Welcome.
James Donald Smith is Chief Intellectual Property Counsel
for Ecolab; which is it? Ecolab, where he oversees the
company's global operations for protection of Ecolab
innovation.
Before joining Ecolab, Mr. Smith served as the Chief
Administrative Patent Judge at the United States Patent and
Trademark Office, where he led the Patent Board and oversaw its
transition from the Board of Patent Appeals and Interferences
to the Patent Trial and Appeals Board, or PTAB.
Mr. Smith has experience both as a patent litigator and
patent prosecutor, and has directed in-house IP teams for
several multinational corporations, including Lexmark, Nokia,
and Baxter International. He was also formerly Assistant Dean
of Emory University's School of Law, and Mr. Smith holds a JD
from Duke University School of Law and a BA in electrical
engineering from the University of Maryland College Park.
Welcome, sir.
Michael Asimow is the Dean's Executive Professor of Law at
Santa Clara University School of Law and a Professor of Law
Emeritus at UCLA Law School, where he has received both the
University's Distinguished Teaching Award and the School of
Law's Rutter Award for Excellence in Teaching.
Mr. Asimow is a former Chair of the American Bar
Association's section on administrative law and Regulatory
Practice and has written numerous articles on State and Federal
administrative law, as well as comparative administrative law.
Mr. Asimow holds a JD from UC Berkeley and a BS from UCLA.
Welcome, Mr. Asimow. You are on the screen.
Last, but not least, Mr. Richard Torczon is a Senior
Counsel and a member of the patent litigation practice in the
Washington, DC, office of Wilson Sonsini Goodrich & Rosati.
Before joining the firm, Mr. Torczon was an Administrative
Patent Judge at the PTAB, where he wrote more than a thousand
opinions and orders on patent appeals, petitions, motions, and
briefs. Before serving as an APJ, Mr. Torczon was an Associate
Solicitor in the U.S. Patent and Trademark Office's Office of
the Solicitor.
Mr. Torczon holds a JD from the University of Texas Law
School, an MS in biotechnology from Johns Hopkins University,
and a BA in computer science from Rice University.
Welcome, sir.
Before proceeding with testimony, I would like to remind
all our Witnesses that you have a legal obligation to provide
truthful testimony and answers to this Subcommittee, and that
any false statement you make today may subject you to 18 U.S.C.
1001.
Before turning to our panel of Witnesses, without
objection, I will enter a statement from Andrew Fois, Chair of
the Administrative Conference of the United States, an
independent agency in the Executive Branch charged by statute
with making recommendations to the President, Federal agencies,
Congress, and the Judicial Conference, to improve agency
adjudication, rulemaking, and other administrative processes.
Mr. Johnson of Georgia. I would also like to note that we
have a statement from the U.S. Patent and Trademark Office
responding to the GAO's initial findings, along with
information about some new interim processes they have put in
place.
[The information follows:]
MR. JOHNSON OF GEORGIA FOR THE RECORD
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Mr. Johnson of Georgia. Now, turning back to our Witnesses
with us today, please note that each of your written statements
will be entered into the record in their entirety. Accordingly,
I ask that you summarize your testimony in five minutes.
To help you stay within that timeframe, there is a timing
light on your table. When the light switches from green to
yellow, you have one minute to conclude your testimony. When
the light turns red, it means that your five minutes have
expired.
We will have five-minute rounds of questions after the
Witnesses' testimonies.
Ms. Wright, you may begin.
STATEMENT OF CANDICE WRIGHT
Ms. Wright. Chair Johnson, Ranking Member Issa, and Members
of the Subcommittee, thank you for the opportunity to discuss
GAO's ongoing work about management oversight practices at the
Patent Trial and Appeal Board.
Mr. Issa. The microphones tend to need you to be pretty
close to work. If you pull it a little closer--
Ms. Wright. Yes. How about now? Okay.
Thank you for the opportunity to discuss GAO's ongoing work
about the management oversight practices at the Patent Trial
and Appeal Board. Today, I will share with you the preliminary
insights from our survey of over 200 PTAB Judges, as well as
perspectives from external stakeholders on PTAB oversight
practices.
Over the years, various USPTO Directors, with input from
PTAB management, have introduced oversight practices to achieve
consistency in quality decisions, given the increasing number
of judges. Oversight practices have included review of the
judge's work before and after decisions are issued. While
judges generally acknowledge the need for some oversight to
promote consistency across decisions, our preliminary work
identified concerns among PTAB Judges about the increasing
levels of management oversight.
Many of the central oversight practices have been
formalized into policy over the last five years. These include
a peer review Committee of nonmanagement judges who reviewed
AIA institution in final written decisions before issuance.
In addition, PTAB established a process in which management
conducted pre-issuance reviews and provided comments on
decisions that involved issues of interest, such as new legal
or policy areas, or areas of inconsistency with other PTAB
decisions or USPTO guidance.
PTAB management officials told us the comments provided as
part of management and peer review processes were generally
optional for judges to adopt. In our work, we found that two-
thirds of judges who worked on AIA trials and one-third of
judges who worked on ex parte appeals reported feeling pressure
to change an aspect of their decision due to management review
comments.
Based on survey and interviews, some judges reported the
increasing amount of oversight and guidance contributed to a
sense of pressure that goes beyond cases in which USPTO
Directors or PTAB management were involved. While judges may
have reported feeling pressure, they noted oversight,
typically, did not influence the merits of the case. However,
there can be pressure on discretionary areas driven by agency
policy or guidance.
The concerns raised by PTAB Judges signal potential
cultural issues. Some judges noted that, even though they
personally have not been on a case in which management, or a
director had directly intervened, they heard about situations
involving other judges, which then made them feel pressure as
to how to render their own decision, irrespective of
management's involvement.
One judge stated that the very existence of the management
review process creates a preemptive chilling effect. Some
judges noted having minimal insight about certain management
practices, including who in management is reviewing and
commenting on decisions.
We spoke to various stakeholders who generally valued
PTAB's ability to resolve patent disputes with specialized
Patent Judges. Stakeholders were generally unaware of the
management and peer reviews, except for some who had heard of
them anecdotally or because they were former PTAB Judges or
officials.
Most stakeholders were concerned about the lack of external
transparency on how decisions are made within PTAB and the
extent to which certain decisions were solely those of the
three-judge panel, or whether others had influenced the
decision.
Some sitting judges also echoed this concern over external
transparency, noting that when management influenced a
decision, there would be no record in the issued opinion. One
judge noted that such insights could help parties to a case
decide whether to appeal or to request director review.
In closing, I note that, during the course of our review,
PTAB recently announced a new interim process for decision
circulation which replaces the previous peer review committee.
The new interim process would make use of a circulation judge
pool of nonmanagement judges. However, this judge pool will not
consult with management about a decision prior to issuance.
Under the new process, management review will be voluntary,
and it will be optional to implement comments. Also, the
Director will not be involved in directing or influencing
decisions prior to issuance.
Officials noted the new process was put in place as a means
to promote transparency about decisionmaking in PTAB. This
could be a good step forward to address concerns of judges and
stakeholders. We will examine the implications of the new
interim process as we complete our ongoing work.
Chair Johnson, Ranking Member Issa, and Members of the
Subcommittee, this concludes my remarks. I would be happy to
answer questions you may have.
[The statement of Ms. Wright follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, Ms. Wright.
Mr. Smith, you may begin.
STATEMENT OF JAMES DONALD SMITH
Mr. Smith. Chair Johnson, Ranking Member Issa, esteemed
Members of the Committee, in 2011, at the recommendation of
then-Under Secretary and Director David Kappos, I was appointed
by then-Secretary of Commerce Gary Locke of the Commerce
Department to serve as the Chief Administrative Patent Judge of
the Patent Trial and Appeal Board--or sorry--the Board of
Patent Appeals and Interferences of the United States Patent
and Trademark Office, or BPAI. I was the last person to serve
in that role. As you all well know, the BPAI was transformed by
the enactment of the AIA to become the PTAB. With that change,
I was asked to serve as the first inaugural Chief Judge of the
PTAB.
At the time of the AIA's enactment, the BPAI had an ex
parte case backlog that eventually rose in 2013 to 27,000
appeals arising from within the PTO. With the task of reducing
that backlog also came the task of equipping the PTAB to handle
the new AIA jurisdiction. We expected to be added to our
workload about 400 new trials every year. The predicted rate of
400 new trials per year turned out, as you know, to be in
excess of 1,500 new trials, or at least that many trial
petitions every year for the next several years.
At the time of this transition situation, the new PTAB
comprised about 90 APJs, and because of strict preclusions on
hiring in the Federal government at the time, only those 90
judges were supposed to reduce the 27,000 case ex parte
backlog, even as 7,000 new ex parte appeals were being filed
every year, and then, also, adjudicate 400 new trial
proceedings annually, which, as stated, actually turned out to
be 1,500 new trial matters per year.
David Kappos positioned for and petitioned for, and quite
fortunately, received permission from this Congress and the
White House Budget Office for us to be allowed to expand the
board. We needed at least 150 additional first-rate patent
judges, and we needed them to be nominated, selected, and
appointed quickly.
Accordingly, the Chief APJ, to whom oversight of such
selection and nomination duties fall, needed to oversee and
drive the necessary process while also ensuring that the
regular judicial duties of the tribunal proceeded smoothly. In
consultation with Director Kappos, we constructed a process
that endeavored to select for nomination to the Secretary of
Commerce the people thought best by us to discharge the duties.
As mandated by the statute, we sought to add to the fine
judges already on the board 150 individuals who were of
unquestionable technical and legal qualification. We looked for
the best PTO employees qualified to serve, and we heavily
recruited from outside the PTO, including by looking to the
ranks of former judicial clerks who had served earlier in their
careers under Article III Judges at the Federal District Courts
and the Courts of Appeals.
We don't have time this morning to go into all what the
proceedings for the selection included--writing samples,
interviews of recommending individuals, interviews of the
candidates themselves, and also, numerous hearings, many
appointment hearings for the judges.
One thing to focus on perhaps for this morning is the one
question we asked all the candidates, and it went something
like this: It is early evening one day in the workweek, and the
Under Secretary or one of his representatives has slipped into
your office to discuss an opinion you are drafting for a case
which was heard, or is being heard, by the panel. This person
says to you that, because of political considerations, facts
known only to the Director, some impact on the marketplace,
that the Director wishes the case to be decided in a way other
than how the panel is prepared to decide the case. What will
you do?
Every one of the judges who we advanced for nomination
answered that question only one way: We will ask whoever is
asking us to change our decision to leave because we believe in
judicial independence and due process, and the Director has
other means, including through rehearing, for the case to be
reviewed. All the candidates who said they would do whatever
the Director told them to do were not advanced in the process.
I speak to this largely to say this one thing: From at
least that time through now, my belief is that all the judges
in their hearts and souls have a commitment to judicial
independence. Whatever may be incident to the process now, I
think none of that will have changed what they seek to do in
the carrying out of their jobs.
If the hearing allows later, the one other thing I would
want to touch on is the mention by the GAO report of the ARC,
the first of the review mechanisms that is mentioned in the
report and about which I think I also can offer some historical
perspective.
[The statement of Mr. Smith follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you.
Mr. Asimow, you may now begin.
STATEMENT OF MICHAEL ASIMOW
Mr. Asimow. Good morning, and thanks so much for inviting
me here today.So, the reason I got invited was because of an
ACUS study that I did about five years ago about adjudication
outside the Administrative Procedure Act, of which there is a
great deal in the Federal government, and the PTAB was one of
my prize exhibits. Now, in fact, there is a question about
whether PTAB is covered by the Administrative Procedure Act,
which I don't have time to discuss, but I'd be happy to turn to
it in the question period.
The problems that we are all talking about today all arise
from the defective structure of the PTAB when it was first
created. Because, unlike any other system of adjudication in
the Federal government, there is no appellate process within
the agency. That is very unusual, and it created a crisis
because there was no way for the Director to manage the
decisions of hundreds of Patent Judges. So, very suboptimal
solutions were adopted to try to achieve coherence,
consistency, and to carry out the policies of the Director of
the USPTO.
So, I am not going to have time today to talk about whether
we should restructure the PTAB, although, again, I would be
happy to answer questions about it. I want to defend some of
the measures that the PTAB took on a managerial level.
First, I am in favor of the use of precedent decisions.
These are used across the Federal government and a very useful
method of achieving consistency in adjudication. So, I think
those are just fine.
The adoption of guidance documents, which are regulations
that can be adopted without going through notice and comment,
to settle policy questions is extremely useful, and probably
should be more utilized by PTAB than it is already.
I am in favor of peer review systems, including the new
innovations in that. It is perfectly okay, in my point of view,
to have some judges critique the work of other judges, even
before the decision becomes final.
The issue here before us today is management review, in
which the GAO report makes it clear that management frequently
intervened in pending cases. As a practical matter, the judges
were intimidated and chilled and mostly followed the
suggestions of management, which were really commands.
So, I think this violates a number of basic administrative
law norms.
First, the lack of transparency. It just isn't fair; the
Director's interference favors one of the parties to an inter
partes proceeding against the other. Yet, the person on the
losing side doesn't know what that input was and has no
opportunity to rebut it, nor do you really know enough to
decide whether to appeal the structure.
In addition to that, I believe the management interference
violates the rule against ex parte communications. In
particular, I call attention to a regulation adopted by PTAB
which says ex parte communications regarding a specific
proceeding with a board member is not permitted, unless both
parties have an opportunity to be involved in the
communication.
I think that regulation has been flouted by the management
interference practices. It violates the exclusive record
principle, which says that a judge can only consider what is in
the hearing record in making the decision. In general, it
violates the principle that Administrative Judges in our system
should be independent in law and fact and appearance.
Management interference prevents that from happening.
Now, I know all this arises from the lack of a proper
appellate mechanism, which was a very serious defect in the
AIA, and has been remedied to a degree by the Supreme Court's
decision in Arthrex, which says there has to be an appellate
mechanism. So far, none has been created. Simply giving the
Director power of interim review over all the hundreds and
hundreds of cases flowing through the agency is not adequate.
There needs to be a structure of APJs who are handling and
creating an appellate tier within this agency, with then
perhaps discretionary review by the Director. Still, as better
appellate review is instituted within this agency, I hope that
the need for management interference will be greatly lessened.
So, I would be happy in the question period to discuss
possible changes, restructuring of the PTAB, as well as its
interrelationship with the Administrative Procedure Act.
So, thanks very much for the opportunity to comment on the
PTAB.
[The statement of Mr. Asimow follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, Mr. Asimow.
Mr. Torczon, you may now begin.
STATEMENT OF RICHARD TORCZON
Mr. Torczon. Good morning, Chair Johnson, Ranking Member
Issa, and Members of the Subcommittee.
Thank you for inviting me to provide my views on the Patent
Trial and Appeal Board. My involvement with the board spans
over three decades, including nearly two decades as an
Administrative Patent Judge deciding appeals, managing trials,
and drafting board rules. I now practice mainly before the
board representing patent owners, petitioners, and appellants.
Please note that I speak only for myself, not for my law
firm, not for my clients, and not for any other organization.
My written statement is of record and provides content and
support for the points I will summarize today.
First, tension inherently exists between political
accountability and adjudicative independence. In Arthrex and
other recent Supreme Court decisions, the court has favored
political accountability for various textual and structural
reasons. For purposes of this hearing, I assume Arthrex is
correct and controlling.
Second, political interference is not new. What has
changed, however, is the frequency and scope of that inference.
Previously, political and management interference were rare and
always recognized, at least some level, as improper. Now, it is
routine, so routine it has become institutionalized.
The AIA accelerated the erosion of an ethos that is
embodied in the Administrative Procedure Act which sets the
norm for agencies. For example, the current layers of
predecisional review are a new concept with predictable
chilling effects. In fairness, most such interference does not
directly affect the merits. However, critically, even minor
interference creates a ratchet effect, such that, once some
interference becomes the norm, more follows.
From the outside perspective, there are at least two
problems with this.
First, parties, courts, Congress, and the public never know
whether, or how much, interference has occurred in a given
decision. Nothing is preserved in the case's record, and no
internal communications are preserved for archives.
Second, flouting one administrative norm leads to flouting
others. For example, Congress defines a rule as an agency
statement of general or particular application and future
effects. Board precedential decisions clearly meet this
definition. Yet, they do not comply with any of the statutory
rulemaking requirements. This rule by fiat is particularly
harmful at the institution stage, where lack of judicial review
enables unchecked departures from administrative norms that
stakeholders cannot challenge.
Several possible solutions exist. The simplest is simply to
codify transparency. Congress could require that all ex parte
communications initiated from outside the panel must be made of
record.
Alternatively, many have suggested creation of an
independent review level. We should acknowledge the cost of
diluting the Director's important policy role by creating yet
another source of patent authority. Unfortunately, however, it
might be needed to ensure the board adjudications will occur on
the merits and on the record.
Review authorities should be distributed over enough
reviewers to be practical. Vesting all review responsibility in
a single reviewer is facially impractical and would evoke the
same skepticism that the Supreme Court's Arthrex decision has
prompted.
The review authority should stay in its lane and not
compete with the Director's policymaking. Review authority,
especially if located inside the USPTO, must have budget
protections and other comparable assurances of its actual
independence.
Finally, if APJ work is subject to additional internal
review, the rationale for three-APJ panels dissipates. Congress
should consider whether single APJ trials would facilitate
other process reforms, such as faster trials and live
testimony.
In conclusion, thank you again for inviting me here today.
I look forward to your questions.
[The statement of Mr. Torczon follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, and I thank all the
Witnesses for their testimony today.
We will now proceed under the five-minute rule with
questions, and I will begin by recognizing myself for five
minutes.
Ms. Wright, the GAO's testimony suggests that many
Administrative Patent Judges felt pressure to change their
decisions in response to direction from management. Based on
your team's research, was this direction from management always
made in writing? If not, can you also tell us what other forms
this direction took?
Ms. Wright. Certainly. I would say, with respect to the
comments that were received during the management review, it
really was a mixed approach. It did seem, however, that most of
the comments were actually not in writing, and we discovered
that through our discussions with the judges as well as with
PTAB management. Sometimes it might have been a phone call,
somebody walking into someone's office to have a discussion,
but, certainly, there were not a lot of documented comments
that were provided, from what we learned.
Mr. Johnson of Georgia. Thank you.
Mr. Torczon, from the GAO's testimony, it seems that the
Administrative Patent Judges on a three-judge panel are often
contacted by others at the agency about the case, about that
case. Yet, there is an existing regulation that prohibits ex
parte contacts with APJs. Are you aware of this apparent
tension while you were an APJ?
Mr. Torczon. Thank you.
As the person who drafted the rule in question, I can
assure you that it has never been viewed as having internal
application. Having said that, I would like to clarify. I mean,
a typical Appeals Judge is deciding--by ``deciding,'' I mean
writing about 100 cases a year and participating on another 200
as a panel member. The number of cases in which there is actual
interference is pretty small. So, I don't want it to seem like
this is happening in every case.
The problem, of course, is that it is happening at all. It
has two effects. One is it is a real problem in the case where
it does happen, and it is also it does have a chilling effect.
Because, particularly on certain hot-button issues like 101
patent eligibility, there is an excellent chance that, if you
are not saying things exactly the way they are supposed to be
said or you come out with a result that you think is right on
the merits, but maybe doesn't fit in the right pigeonhole, you
may get a visit; you may even be asked to change your opinion.
Mr. Johnson of Georgia. In light of the rule against ex
parte communications being in place at this time, do you think
legislatively mandating no ex parte contacts with APJs would go
far enough to ensure judicial independence?
Mr. Torczon. I absolutely think legislation would make a
difference. Among other things, it would give clear empowerment
and a clear sense of policy direction to the agency of what is
supposed to occur. It would also, as a practical matter, give
the APJs employment recourse if they are criticized at that
point.
I think, largely, this comes down to a matter of culture.
In a perfect world, we wouldn't need this because in a perfect
world people would understand that the existing administrative
norms already require what we are discussing. I think the
problem is, culturally, we are well past that point.
Mr. Johnson of Georgia. Thank you.
Professor Asimow, one of the issues highlighted by the GAO
is that Administrative Patent Judges sometimes face lower
performance reviews or reassignment if they do not accept
management-directed changes. How do other agencies handle this
sort of dynamic in an adjudicatory setting?
Mr. Asimow. Well, if you are covered by the Administrative
Procedure Act, there are various elaborate protections for
Administrative Law Judges, and who, if they are subject to any
kind of unfavorable employment action, can take that to the
Merit Systems Protection Board. Now, this doesn't exist when
you are outside the APA, and therefore, it is more difficult to
achieve judicial independence in the situation that you
describe. There isn't any clear-cut remedy for the APJ to
pursue if they suffer some sort of negative employment result.
It is a big problem, and obviously, undercuts the goal that
Administrative Judges must be independent.
Mr. Johnson of Georgia. Thank you.
My five minutes have expired. We will now turn to the
gentleman from Kentucky, Mr. Massie, for five minutes.
Mr. Massie. I thank the Chair.
I wasn't here for the AIA. So, just kind of looking back in
history, but was part of the reason that it was established was
that the stakeholders wanted more certainty in the outcomes,
that maybe the juries weren't capable of adjudicating patent
fluidity? Was that part of the motivation, that a layperson
selected to be on a jury might not come up with the right
answer? I will ask you, Mr. Smith.
Mr. Smith. Can you hear me? Yes.
I am not sure that there was--well, let me answer the
question this way without speaking to juries specifically.
Because, of course, in going to the AIA, one not only avoids a
jury, but a bench trial from a Federal District Court.
Mr. Massie. If you could speak about juries, I would
appreciate it because that is my next question.
Mr. Smith. Well, it is subsumed within the answer.
Generally, well, the statute requires the judges of the PTAB to
be both technically and legally qualified, and only they
participate without any jury in the decision of the case. So,
one necessarily gets, with a PTAB proceeding, the elimination
of any uncertainties one might think a jury to introduce to the
proceeding.
Mr. Massie. Would you like to comment on it, Mr. Torczon?
Mr. Torczon. Yes. I think that there was an understanding
that issues outside the technical or legal merits could
influence the decision of any decisionmaker, and that one of
the advantages of having an expert body is that they would be
familiar with the technology. By statute, APJs are required to
be, and usually within--or usually are deciding cases that are
aligned to their area of technical expertise.
Plus, APJs decide far more patent cases than anybody else,
even the Federal Circuit Judges, and so, as a consequence, are
always very acutely aware of what the State of the case law is.
So, I think the expectation is you would get advantages and
efficiencies by having people who are directly familiar with
both the technology and the law which may be lost on others.
Mr. Massie. Thank you.
So, just looking back--I wasn't here for the creation--but
I find it odd that we created this panel that would invalidate
patents because the juries weren't capable of understanding
this, but infringement is still decided by juries, right? Isn't
this true, that PTAB doesn't deal with infringement?
Mr. Torczon. That is quite true, and, in fact, even
invalidity is still typically, or often handled still in court.
Mr. Massie. So, I think it is kind of odd. I don't
understand why this is a one-way system where, if you are an
inventor, the only thing that comes out of PTAB, the only
possible outcome that is an active outcome is your patent is
dead. If you are an inventor and somebody is infringing on you,
the PTAB doesn't--there is no offer of help there, and we are
trusting--we say we can trust juries with the decision of
infringement, but not with the decision of patent validity. In
fact, they involve exactly, not precisely, but very largely,
the same issue.
Do you believe that patent holders should at least, even
after PTAB, always have the right to a jury trial?
Mr. Torczon. I would have to unpack that question a little
bit. I mean, certainly, if you are in District Court--
Mr. Massie. Should they be able to appeal it and get a jury
trial?
Mr. Torczon. So, you are proposing appeal of an
administrative decision to a District Court with a jury trial.
I would say that this goes to a more fundamental issue because
that would be unique in review of an administrative decision--
Mr. Massie. Well, here is the problem that I have: There
used to be a provision in our parliamentary rules on the floor
of the House where you could rename a bill. I once offered an
amendment to rename the bill to suspend the debt limit two
years ``A Bill to Kick the Can Down the Road and For Other
Purposes.'' We got 40 votes on that amendment.
[Laughter.]
If I had been here for the AIA, I might have offered an
amendment to rename it ``The Seventh amendment Repeal Act,''
because this thing that is in our Constitution, which is the
right to a jury trial, if the thing in question is more than
$20, it has been suspended by AIA.
I know my time has expired, and I don't want to start us
off on a bad foot. So, I would yield back to the Chair.
Mr. Issa. It was a wonderful foot. I felt it.
Mr. Johnson of Georgia. Thank you.
We will now turn to the gentlelady from North Carolina, Ms.
Ross, for five minutes.
Ms. Ross. Thank you, Mr. Chair. Thank you to the Ranking
Member and all the Witnesses for being here today to discuss
this very important issue.
I represent a district in North Carolina that takes pride
in its culture of innovation. My district is home to world-
class research institutions, individual inventors, small
startups, large technology companies, and everything in
between.
Innovators deserve to have their rights enforced in a
transparent manner consistent with the principles of due
process. What is why the GAO's preliminary findings are so
troubling. Seventy-five percent of the surveyed judges
responded that the oversight practiced by the politically-
appointed directors or other PTO management had affected their
independence. This is unacceptable and contrary to the
fundamental values that undergird our democracy. The integrity
of the U.S. patent system must be maintained to ensure
continued American innovation.
My first question is for Mr. Smith. As the inaugural Chief
Judge who oversaw the agency's transition from the Board of
Patent Appeals and Interferences to PTAB, your written
testimony states that you sought to ``enshrine due process and
lack of interference.''
Can you talk about your vision of how the board was meant
to function and how that compares to what we have heard from
the GAO today? Please also highlight what you believe are the
root causes for those differences.
Mr. Smith. To the first part of your question, I will offer
these two things:
First, somewhat in distinction to what Judge Torczon has
said, I think at least at the time I was at the board, the idea
that there should be no ex parte communication operated not
only with respect to ex parte communication coming from outside
the agency, but also from within the agency; that the three
judges empaneled to hear a case were to be hearing it by
themselves without interference or discussion or contribution
by any others inside or outside the office.
Secondly, I would say this, and this touches on the portion
of my testimony that I had hoped to provide a little more
insight around; namely, the operation of the ARC. The ARC was
intended not to be an ex parte communication or other
interference by other judges, including management judges, with
respect to the merits of the decision, but merely one to drive
uniformity in the written output of the board.
In fact, it was the case that members of the ARC sometimes
provided to judges recommendations about how strongly they
might State their opinions, even when those opinions were the
opposite of what an ARC member might himself or herself have
decide.
So, that is at least some of how, historically, we tried to
drive independence, transparency, and the absence of
interference in communication about cases.
Ms. Ross. Thank you very much.
Mr. Torczon, as a former judge who now represents litigants
appearing before PTAB, how did the GAO findings comport with
your personal experiences? Do you find any of those findings
particularly surprising?
Mr. Torczon. The first answer is they are very consistent,
not only with my experience, but also with what I hear from
currently serving judges. No, none of them were surprising.
Again, I think the report shows that there is a problem; it is
not in every case, but the lack of transparency makes it a
problem because you never know when it is an issue.
Ms. Ross. Okay. Then, where do you think--why don't we go
to this next one for Ms. Wright very quickly?
Thank you for your work to shed light on this critical
issue. I understand the final report will have recommendations.
Are those recommendations limited to the recommendations for
the PTO? Or will you have some legislative ideas that go with
that?
Ms. Wright. At this time, based on the findings that we are
reviewing, it will likely be recommendations to PTAB or to
USPTO. We think that there are certainly some issues to look at
with respect to transparency, communications. So, those will be
some of the things that we will continue to develop as we
complete our work.
Ms. Ross. Thank you, Mr. Chair. My time has expired, and I
yield back.
Mr. Johnson of Georgia. Thank you.
Next will be the gentleman from Ohio, the Ranking Member of
the Full Committee, Mr. Jordan, for five minutes.
Mr. Jordan. Thank you, Mr. Chair. I would yield to the
gentleman from California, Mr. Issa.
Mr. Issa. I thank the gentleman.
Ms. Wright, you said that you thought this would be
primarily the PTO. If you make recommendations and they make
changes without legislation, would there be any reason they
couldn't simply change back later?
Ms. Wright. That is certainly a likelihood. Based on what
we heard from the judges and others who we spoke with different
directors take a different approach. There are some of them
that are more heavy-handed, some that are a little bit more
hands-off. So, there is probably a need to think about ways in
which to ensure that there can be consistency, regardless of
who the director is.
Mr. Issa. Following up on that, Mr. Smith said that, in the
interview process, candidates who failed to say, ``Get out of
my office'' were not selected. In your interview process, did
you find people who, in fact, admitted that they made changes
based on these ex parte, effectively, orders to make changes?
Ms. Wright. So, while we did hear from people that there
were directions or comments provided that could alter or modify
their decisions, none of the judges who responded to the survey
or those we interviewed admitted, or stated, I should say,
whether or not they subsequently adopted those changes. They
certainly noted that they felt pressure to do so; they felt an
obligation, particularly if it had potential repercussions on
their performance reviews, but we did not hear specifically
whether or not those changes were actually adopted.
Mr. Issa. I don't think I would admit it, either. Following
up on what Mr. Smith said, they did not throw the man out of
the room; they did not ask him to leave, and they felt
pressured. So, at a minimum, it could have had an effect on
their decision process, without a doubt?
Ms. Wright. It is possible, but hard to say, since we don't
have the evidence, testimonial or otherwise, to show--
Mr. Issa. In at least one case, did the Director actually
make reversals in an ex parte and undisclosed fashion?
Ms. Wright. I am sorry, can you repeat--
Mr. Issa. Did you find cases that were reversed in any case
by the Director, period? In other words, they made a
preliminary, it was reversed, and the indication was on orders
of the Director?
Ms. Wright. Nothing in our work.
Mr. Issa. You saw cases that got reversed after a
preliminary; you just couldn't prove who did it?
Ms. Wright. We did not note--we couldn't say definitively
what changes were adopted and whether that resulted in an
actual reversal. Judges noted that they got comments; they felt
pressure; they felt obligated, but we did not have the
information to definitively confirm.
Mr. Issa. Mr. Torczon, I knew you would be chomping at the
bit. Let me just ask one preliminary question, which is, if you
were an Article III Judge, and someone walked in the room and
had an ex parte discussion about how you should decide it, is
there any question about what would happen if you walked in to
see an Article III Judge with such a--even if you were Federal
Circuit Judge, what would happen?
Mr. Torczon. I think the result would be very different. In
fact, this gets to a point that there actually is an internal
review process at the Federal Circuit, but there is a huge
difference between a staffer offering a suggestion to someone
with life tenure and a supervisory or even supervisor-supported
colleague giving you advice on how to write a decision when you
are not life-tenured.
Mr. Issa. Especially when your career could be affected by
that same person.
Mr. Torczon. Right, and sometimes the effects can be really
subtle, too. If there are two dispositive issues in a case, one
of them is a hot-button issue like section 101 and the other
one isn't, I may choose to decide the case on the issue that is
not dispositive and try to avoid the 101 issue entirely.
Plus, I can give you at least one example from my
experience where I was on a panel. One of the judges was a
management official. I indicated I would dissent, and the next
thing I knew, the case had been assigned to a different panel.
So, sometimes it can be fairly heavy-handed.
Mr. Issa. There won't be time for you to answer this one,
but when we get another round I want to make sure that both you
and Mr. Asimow are prepared to talk about your divergent
decisions. Because he felt that circumventing APA was okay and
necessary, and you seem to feel that, without rulemaking, the
process effectively was not what Congress had intended in the
law.
You can just say yes because--
Mr. Torczon. Yes. Yes, I would look forward to that.
Mr. Issa. Thank you.
I yield back. I thank the gentleman.
Mr. Johnson of Georgia. Thank you.
We will now turn to the gentleman, Mr. Stanton, from
Arizona for five minutes.
Mr. Stanton. Thank you very much, Chair Johnson. Thank you
for holding this important hearing and substantive hearing.
I know you have additional questions you have for the
Witnesses. So, I yield my time back to you, Mr. Chair.
Mr. Johnson of Georgia. I thank the gentleman. Ms. Wright,
the GAO study required you to work closely with the USPTO and
the PTAB management. Can you explain how your interactions with
them went and did you have any concerns that you were not
getting the information that you needed?
Ms. Wright. Well, indeed we did have several meetings and
conference calls with them, and I would say in the beginning it
took a little bit of attention and effort to grease the skids,
if you will. Over time, as the work continued, we were able to
get information. Sometimes there were multiple discussions
about the various document requests, but overall, I would say
in the end, they were responsive to our requests for
information.
Mr. Johnson of Georgia. Did you have any concerns that you
were not getting the information that you needed?
Ms. Wright. There was nothing obvious that would suggest
that anything was being withheld from us. Sometimes it did take
a little while to get the information that we were requesting,
but in the end, to the extent that it was available, we did get
the information.
One of the things we did ask about was whether or not there
were written comments that were provided, an example that could
be shared. That was something that we consistently heard that
there weren't really many written comments to be able to
provide to us.
Mr. Johnson of Georgia. Is there any information that you
believe that you should have gotten, but you haven't yet to
receive?
Ms. Wright. Nothing outstanding comes to mind at this time.
Mr. Johnson of Georgia. Thank you. Mr. Torczon, your
testimony suggests that there was a culture of judicial
independence when the PTAB was the Board of Patent Appeals and
Interferences. Where do you think that came from? Do recent
developments suggest that this was more of a norm than a legal
or regulatory requirement?
Mr. Torczon. I think there were several factors that went
into play. First, when I joined the board in the mid-'90s,
patent law was just starting to become a highly visible topic.
So, I think we have seen an increasing politicization of the
agency since then.
I also think that one way that the AIA directly contributed
to this is a very quick tripling of the size of the board. I
think Chief Judge Smith deserves enormous credit for managing
that process. That is a crazy growth curve.
I think one of the things is when I started at the board,
overwhelmingly, people were coming from within the government,
either the PTO or other agencies. So, the understanding of the
basic norms of agency practice existed. While bringing a lot of
people from outside of the government had undoubted benefits,
one of the consequences was a weakening of that norm, plus at
that time, they converted the position to have a two-year
probationary period which meant your first two years at the
board you also have less job security, whereas if you were
coming in from another part of the PTO, you pretty much had job
security right away.
So, I think there were a lot of factors that set into this,
but there was no watershed thing and it is not like the AIA
flipped the switch or anything. I just think the culture
drifted over the years.
Mr. Johnson of Georgia. Thank you. Mr. Smith, I wish we had
time to hear about how you were able to clear out that backlog,
if you were able to, and incorporate the new volume that was
coming in. That is a story for a book, I suppose. From my
vantage point, part of the problem seems to be that APJs are
legal and technical experts, capable of reading and digesting
binding precedent from the Federal Circuit and the Supreme
Court. Therefore, if the Director issues legal guidance on a
contentious issue of substantive patent law, APJs may
legitimately think that guidance departs from binding judicial
case law. As we know, the USPTO has no substantive rulemaking
authority.
In your view, how should this situation be handled?
Mr. Smith. A panel judge never wants to have by following
agency guidance not follow Federal Circuit or Supreme Court
law. So, this was the subject of often discussion, we always
undertook to take note of any guidance from the Director's
Office and certainly to allow it to guide us. Always with the
thought that any written decision goes to the Federal Circuit
and the Federal Circuit never would say while you didn't follow
our precedent, we affirm because you followed the guidance of
the Director. So, always the mandate was that the North Star is
Federal Circuit and Supreme Court jurisprudence.
Mr. Johnson of Georgia. Thank you. Okay, we will next hear
from the gentleman from North Carolina, Mr. Bishop, for five
minutes.
Mr. Bishop. Thank you, Mr. Chair. I yield my time to Mr.
Massie.
Mr. Massie. I thank the gentleman from North Carolina. Mr.
Torczon, I realize the answer to the question I am about to ask
could take all day or all five minutes, but I wanted to give
you a chance to give me a brief answer.
In the beginning, in your testimony, you said for the
purpose of the hearing. We will assume that Arthrex, we will go
along with Arthrex. Does that imply that you have some
disagreement that maybe you think the Supreme Court didn't get
it right?
Mr. Torczon. I think that the place they came out saying
that a political head of an Executive Branch agency should have
a significant role in outcomes is a very reasonable one and I
am sure their reasonable minds can and do differ, but I am not
a Supreme Court Justice. I am satisfied with that result. Their
solution isn't a particularly good solution.
Mr. Massie. Their solution is not a good solution. Okay.
Mr. Smith, how about you?
Mr. Smith. I think the Supreme Court, and for that matter,
the Federal Circuit, put forward two clear alternatives, both
of which are constitutionally and legislatively acceptable.
Presidential appointment without significant review by the
Director or for inferior officers, no Presidential appointment,
but review by the Director which then triggers the next
important and critical question, what kind of review? Is it a
review of a kind that limits, eliminates ex parte communication
and allows transparency? So, it is a fine solution, if properly
executed.
Mr. Massie. So, all these problems that we are grappling
with and all the things that Ms. Wright has showed us here, how
do we avoid this for the first 250 years of our country, the
problems of where the judges at PTAB don't feel like they have
independence? How do we avoid that for the first 250 years of
the country with adjudicating patents?
Mr. Smith. Well, of course, the development of the
administrative and agency estate within the government is a
long one and in the late 20th and early 21st century we have
problems of that kind that we never had in the first 200 years
because government wasn't that size. The primary protection was
of the kind we have in Article III Courts, appointment by the
President with the advice and consent of the Senate and then no
change of salary of firing for how you decide a case. Inasmuch
as those protections existed also in the Executive Branch, we
also had insulation from the kinds of problems dealt with by
the Supreme Court in the Arthrex decision.
Mr. Massie. Do PTAB Judges get bonuses? Do their salaries
change based on their managers' appraisal of their performance?
Mr. Smith. At least for a time and I don't know if it is
true now, bonuses were paid to PTAB Judges, but not at all
based on how they decided cases, but how much decisional
workload they were willing to undertake, and this is part of
the story with regard to reducing the 27,000 case backlog.
Essentially, we asked the judges to work extra hours in order
to help reduce that backlog.
Mr. Massie. I am going to ask unanimous consent to submit
to the record a paper. It is called Pecuniary Interests of PTAB
Judges-Empirical Analysis Related to Bonus Awards to Decisions
which seems to find empirically that the ones who struck down
more patents got paid more. I think that is a problem.
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Mr. Massie. You said that the Supreme Court offered two
solutions. There is actually a very good third solution which
is the solution we had for the first 250 years, before AIA. It
seems like we are struggling with this problem because we took
something that belongs in the Judicial Branch and worked in the
Judicial Branch for 250 years and stuck it in the most
political branch there is. There is no bipartisanship in the
Executive Branch even.
Congress is very political, but at least there is some
Republicans and some Democrats at all times. In the Executive
Branch, it is political, and the Judicial Branch is--I am just
sitting here thinking all these problems get solved if you do
one thing. Put it back the way it was. Put it back the way it
was. Otherwise, we will be here. We can patch this PTAB up, but
we are going to be here four more years wondering about how the
system got corrupted, how the independence was lost, why
inventors are getting messed over and they have no way to
appeal it. We will just be back here again if we try to patch
this thing up and I yield back my time. I yield back.
Mr. Johnson of Georgia. Thank you. At this time, we will
recess for about 15-20 minutes for votes that have been called.
We should be back in about 20 minutes.
[Recess.]
Mr. Johnson of Georgia. Okay, the Committee has gone back
into session. With that, we will now hear for five minutes, Mr.
Gaetz.
Mr. Gaetz. Thank you, Mr. Chair. Thank you for calling this
hearing. I yield to Mr. Massie.
Mr. Massie. Thank you, Mr. Gaetz. Ms. Wright, I am glad you
did this study and I wish it were complete. I am not sure why
we called you here without a complete study, but since it is
not complete, I am not blaming you for that. I want to ask you
a question about the stakeholders who were interviewed to make
sure you got the full picture.
Did any of the patent holders that were stakeholders, were
you able to interview any patent holders who had their patents
invalidated at PTAB and then couldn't get judicial review after
that?
Ms. Wright. I am not aware of any such instances from the
folks that we spoke with. It was a really small group of
people, 23 stakeholders total, and I think just a handle of
patent owners.
Mr. Massie. It may be too late, but if it is not, I think
it would be helpful to talk to patent holders who feel
aggrieved by the PTAB and weren't able--specifically the ones
who weren't able to get any kind of review at a Court of
Appeals beyond that. I just think it is un-American that we
have a system like that where somebody they have worked all
their life, they worked really hard on something, they invested
their time, their money, and in some cases mortgaging their
businesses and homes, and then they get--and what we found out
today, they get in a very nontransparent way, they get told we
are just going to take that all away from you. What happens is
they appeal it to the court, and then the court has this thing
where they say, well, we are going to agree with PTAB, and we
are not going to re-litigate. We are not going to go back and
look at what they did. Every time an inventor comes in and says
that to me, I am like how can this be in this country?
Mr. Smith, do you think that inventors deserve at least
another review of their case in the Article III Courts, if
their patent is invalidated by PTAB?
Mr. Smith. Yes.
Mr. Massie. Are you aware of any cases where the higher
court just refuses to actually look at the facts in the case?
Mr. Smith. I think the structure of the AIA made it so that
if no trial is instituted that decision is not reviewable. If a
trial came to be instituted and the claims were declared to be
unpatentable, I believe that the AIA most definitely creates a
review structure within the Article III Court, first to the
Federal Circuit and then to the U.S. Supreme Court.
Mr. Massie. What I am hearing from inventors is that the
higher courts just refuse to review the facts.
Mr. Smith. That is not my understanding.
Mr. Massie. Okay.
Mr. Smith. My understanding is that the Article III Courts
who review decisions of the PTAB have the same review of facts
that they have in other cases under a higher standard, of
course, than they review the law where that is reviewed de
novo, but they certainly have available to them the opportunity
to declare the work of the PTAB to have been in error with
regard to any fact finding.
Mr. Massie. There is a patent holder or used to hold a
patent sitting behind you. Had her patent stripped by PTAB and
hasn't had that what seems to be a right of any American
extended to her to have an actual review of the facts of the
matter in the case. I think that is problematic.
Mr. Torczon, is it possible to patent a perpetual motion
machine?
Mr. Torczon. Unfortunately, yes. In fact, I had a friend
who once took a tour of the European Patent Office where they
proudly showed him their collection of U.S. patents to
perpetual motion machines which was the entirety of their art
on that subject.
Mr. Massie. Well, I think what Congress did when they
passed AIA and created PTAB was they created something akin to
a perpetual motion machine. When you get down in it, it does--
it can't really exist. You can't really have judicial
independence, especially now, in the context of Arthrex where
they said it has to be, there has to be somebody who is
politically appointed who has got at least some control over
what is going on. The problem with that is even if it is not
immediate and direct control over every patent review, it leans
one way or the other and that happens every four years and
patents last 20 years and it shouldn't be this whether you
believe in stronger patents or weaker patents. I yield back the
balance of my time.
Mr. Johnson of Georgia. We will now hear from the gentleman
from Oregon, Mr. Bentz, for five minutes.
Mr. Bentz. Thank you, Mr. Chair. I yield my time to the
Congressman from California, Mr. Issa.
Mr. Issa. I thank the gentleman for his kindness in his
yielding.
Mr. Smith, earlier, quite a while earlier, there was a
discussion about should you, having had a decision by PTAB,
should you be entitled to a jury trial. There was also a
question by the gentleman from Kentucky about this whole idea
of being able to get back to what I understood was the District
Court if you didn't like what the PTAB did.
Let's go through a couple of historic items because the
gentleman talked about restoring it as it was before the
Invents Act. Do you get to have an Article III Judge and a jury
review if there is an ex parte reexamination and your patent is
invalidated?
Mr. Smith. No, sir.
Mr. Issa. So, that existed before 2011. Still exists,
right?
Mr. Smith. Yes, sir.
Mr. Issa. Okay, so administrative processes don't--are
decisions because that is the entity, the PTO grants the
patent. They also are the ones that can say we erred and new
information changes our decision.
Mr. Smith. That is the current structure, yes, sir.
Mr. Issa. Okay. The only difference between an ex parte and
the inter partes is that the inter partes is open and
transparent and if not interfered with does have a high-level
judge looking at it and making decisions based on evidence that
is potentially rebutted if inaccurate?
Mr. Smith. Yes, sir.
Mr. Issa. Okay. Now, let's talk though about this jury
question because I think that is extremely important. Mr.
Massie and I both have one thing in common which is we have a
lot of patents and some patent experience, having been the
litigants, if you will.
Does a judge give the jury the Markman decision in an
Article III Court?
Mr. Smith. Maybe yes, maybe no. There is a certain amount
of complexity to it.
Mr. Issa. Under Markman is the Article III Judge required
to issue a Markman decision.
Mr. Smith. The judge is required to issue a Markman
decision. There comes to be the question of how much is there
in the way of underlying facts which drive the question of a
law that is determined at a Markman stage in a case. It could
be that there are no facts in dispute in which case the jury
had no role in the Markman determination by the judge.
Mr. Issa. As a practical matter, Mr. Torczon, as a
practical matter, Markman decisions by the judge which decide
what the patent really means, not what the patent holder says
it means when coming forward, but what it actually means,
effectively can strip away claims as the plaintiff has alleged
them, and can often define the outcome of the case. Is that a
fair statement that Markmans often end cases or effectively end
cases?
Mr. Torczon. I think with the qualification of often, yes.
In fact, the best proof of that is often at which you see
settlements or indeed interlocutory appeals because it is
dispositive.
Mr. Issa. So, when we are looking at this tool created by
Congress that has over 250, virtually 250 judges today working
on, it is a tool--and correct me if I am wrong, that is fairly
similar to other tools, but it has a couple of advantages. It
is open and transparent if properly conducted. It has experts
who specialize in it, which Article III Judges have a hard time
being because they have other cases. The reality is it is less
expensive, quicker, and has a narrow scope of what it is to
decide.
Mr. Torczon. Yes, I think that is true. In fact, I would
point out that a lot of the concerns that are being addressed
at this point were brought up in Oil States. The Supreme Court
explained how the particular nature of this process that is
basically a review of an expert agency's product that is simply
get re-reviewed makes perfect sense and doesn't implicate the
kinds of Seventh amendment concerns.
Mr. Issa. Lastly, for the person behind you whose patent
has been invalidated and my sympathies because that really
hurts any time you lose a claim that you believe should be
meritorious. If that happened effectively at a Markman or in an
ex parte reexamination, the outcome would be the same. There
would be no Federal Circuit appeal, correct?
Mr. Torczon. I think there would be. Both reexams and
District Court cases provide routes to Federal Circuit review.
As Judge Smith pointed out, if a case isn't instituted, the
patent owner has already won. If it is instituted, whoever wins
or loses has a route to the same Federal Circuit review.
Mr. Issa. So, she is not being denied that capability. She
simply has to avail herself of it?
Mr. Torczon. No, as somebody who has represented many
patent owners at the Federal Circuit, I know that they review
the cases in great detail. In fact, if anything, a criticism of
the Federal Circuit is it re-weighs facts perhaps more than an
Appellate Court should, so the idea that the Federal Circuit
did not look at the facts is totally inconsistent with my 30
years of experience with the court.
Mr. Issa. Thank you. I yield back.
Mr. Johnson of Georgia. We will now turn to the gentlelady
from Minnesota, Ms. Fischbach, for five minutes.
Mrs. Fischbach. Well, thank you very much, Mr. Chair. I
guess, I know this is going to be a difficult question or maybe
not difficult, but maybe more expansive than four and a half
minutes that I have got, but you know, one of--and this is to
all the Witnesses. What do you think Congress can do to correct
the issues raised in the GAO investigation? Both in the short
term and in the long term and that is open to anybody, so if
someone would like to jump in or any of these Witnesses.
Ms. Wright. So, I would say from GAO's perspective,
certainly we think that bringing more attention to the need for
transparency and decisions is really important, including being
able to identify whether the opinions that are issued are that
of the three-judge panel or perhaps other parties.
Mrs. Fischbach. Legislatively, you think we could
accomplish that?
Ms. Wright. There are probably legislative avenues to do
so.
Mrs. Fischbach. Okay. Thank you. Do any of the other
Witnesses want to get into that and maybe--
Mr. Asimow. Yes, I would. One option that should be
considered by Congress is the creation of a tribunal instead of
the existing structure of the PTAB, that is, that it is no
longer a part of USPTO, but is an independent adjudicating
entity in which the director of the PTO would become a party
and could appear on the side of either litigant, but that
otherwise, the process isn't controlled by the USPTO at all.
So, as an example of that, there are numerous examples. You
might think about the Tax Court. So, if you have a tax dispute
with the government, you are not litigating before the IRS, you
are litigating before an independent adjudicating body called
the Tax Court and the IRS is your opponent.
So, in general, and really around the world, this idea of
the independent tribunal is an appealing model.
Mrs. Fischbach. Thank you very much. Mr. Torczon and
forgive me for mispronouncing your name if I did. Do you have
anything to add to that? I know that you touched on a few
things earlier, sort of kind of talked about a few things and I
am just wondering from your perspective are the things that
Congress could do in short term and long time.
Mr. Torczon. So, I am kind of an agnostic on this. I think
the one real thing that needs to be done is a culture reset as
the minimum. We have talked about how sort of a surgical
requirement for transparency is probably necessary. Beyond that
there are so many possibilities. Congress solved this problem
in 1927 and inadvertently messed it up with the Civil Service
Reform in the '70s. So, you could go back and make everybody a
PAS which was the old way that it used to work.
There are all sorts of possibilities. I even give examples
of moving the Article 1 Judges into the Judiciary. There are
lots of possible choices, pluses and minuses to all of them,
but transparency really is a necessary factor of any solution.
Mr. Smith. If I may offer--
Mrs. Fischbach. Absolutely.
Mr. Smith. First, my views on all the things I have spoken
to today are my own and not that of Ecolab or anybody else. I
should--that is entered into the record, but I think I should
State that as well here.
I think this is a rare instance in which the solutions for
Congress to follow have been spelled out somewhat more
explicitly by the Supreme Court than in other instances.
Presidential appointment of the judges is one route. That is
solution number one. That maybe thought not the right solution
for a variety of reasons.
Another is to have review, but make sure that is with
inferior officers not appointed by the President, review of
their decisions, that is entirely consistent with all the
things we are concerned about, due process, transparency, and
the like.
Maybe the mechanism already is part of what the system has
in it. The Director decides in a case where the decision, the
prudence of it, there is some misgivings about that to have the
case reheard on rehearing by another purely independent panel
which the Director again--where the Director again would not
interfere with the independent determination. That maybe it is
easier if the tribunal operates outside the agency or maybe
mechanisms like that without the Director, possibly outside the
agency, but that is the other path. Review, but with a review
that is transparent and involves no interference.
As Judge Torczon was saying earlier, no ex parte
communication ought to mean no ex parte communication and
transparency. Every communication being on the record should
mean every communication being on the record.
Mrs. Fischbach. Thank you, and thank you to all the
Witnesses for being here today. I appreciate that and I know
you had to wait while we ran for votes, but thank you very
much.
With that, Mr. Chair, I yield back.
Mr. Johnson of Georgia. I thank the gentlelady. Next, we
will hear from the distinguished gentleman from California, Mr.
Issa, for five minutes.
Mr. Issa. I think the gentleman from Kentucky has a UC
request if we could.
Mr. Massie. Mr. Chair, I ask unanimous consent to submit
four documents to the record. The first is one I referenced
earlier in case we didn't get that in there, titled How
Pecuniary Interests of PTAB Judges-Empirical Analysis Related
to Bonus Awards to Decisions. The second one is How Google and
Big Tech Killed the U.S. Patent System. The third one, USPTO
Response to FOIA Confirms There Are No Rules of Judicial
Conduct for PTAB Judges. The fourth one I would like to submit,
the Seventh amendment to the Constitution for the record
because I believe the PTAB is an egregious violation of it.
Thank you.
Mr. Johnson of Georgia. Without objection, so ordered.
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MR. MASSIE FOR THE RECORD
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Mr. Johnson of Georgia. The gentleman is recognized.
Mr. Issa. Thank you, if we could start again. Thank you. I
think I am the closing Act here and so I want to bring back
some questions that I think particularly my two judges, former
judges are equipped to answer.
First, when we look at PTAB today, is it in fact an
organization that has a lower reversal rate than Article III,
at least as to the items that they have before them?
Mr. Smith. I think the answer to that is yes.
Mr. Issa. Is it quicker notwithstanding that you might be
in two places, but the process is fairly quick?
Mr. Smith. There is no question that is true. If a Congress
did the PTAB the favor or the non-favor of requiring written
decisions in no more than 365 days, I think at least during the
period I was the Chief Judge, we did not take 366 days in even
one case.
Mr. Issa. So, we have a response that is quicker and more
accurate, but perhaps lacks transparency. Because it is quicker
and more accurate, it is fair to say at least on those decision
it is less expensive for both sides, right?
Mr. Torczon. I would say that is generally true just
because the issues are so much narrower.
Mr. Issa. So, knowing what is good about it, we have some
challenges. I am going to ask one question to both of you, the
Chair and I have talked about a lot of potential fixes
including the tribunal and other options. Is it fair to say
that in a previous court decision when bankruptcy judges,
Article 1 Judges, were moved to fall under the Federal Circuit
system, it both solved the problem and elevated the respect for
the decision process?
Mr. Torczon. Yes, I think that is true. I would say that my
experience confirms GAO's which is that generally people
believe that they are getting very high-quality decisions from
the board. That is certainly my belief.
Mr. Smith. The Bankruptcy Court solution, Article 1 Judges
in the Article III world certainly have proven over time to
work and the question is does it work for this circumstance?
That is the matter before your esteemed selves.
Mr. Issa. Well, in somewhat of a closing statement, the
challenge we have is with the GAO's preliminary findings and
what we hope to be some additional with whistleblowers that
have come forward that we hope to bring public at the right
time, we do believe that there needs to be Congressional
action. Now, we want to do it measured. We want to do it
carefully. In light of the Supreme Court, we want to do it
constitutionally. So, that gives us several avenues.
Obviously, additional confirmed individuals who perhaps
would be term and would not be as politically affected
certainly is one possibility and the Chair and I have discussed
it. The idea of moving to Article III oversight is another one.
Because of the size of this court, it would bode well for it.
Unfortunately, because of the size and complexity of it, the
question is would we remove them from their technical
environment, from an environment that is synergistic to what
they do. All of those will have to be considered.
The one thing that I will ask is a closing question to each
to the extent that you can answer it. If we were to scrap 250
judges and growing, what would be the impact if all that work
was moved back to the Article III Courts?
Mr. Torczon. If I can start, I would point out that this is
not really been the solution that has existed since the 1830s.
The PTAB, the office since the 1830s, has reviewed and had
trials between competing interests and has even taken out
patents and patent interferences.
Mr. Issa. Oh, my goodness. So, you are telling us that it
is not new and what Mr. Massie is saying that we should just go
back to the way it was, wouldn't actually take it all to the
Article III, the way he implied? Tell me more, please.
Mr. Torczon. As something actually like patent
interferences which may be an extreme minority, yes, patent
interferences covered all patentability issues and even covered
inequitable conduct and invalidated patents as part of that
process. The AIA has expanded the scope, but one of the reasons
why the AIA was adopted is because it was very clear that the
interference process was being abused to get a post-grant
review process that otherwise wasn't available.
Mr. Issa. Mr. Chair, that is probably the best place to
close, the recognition that this is an evolution, that we have
been here every 4, 10, or 20 years for more than a century, and
that yes, we might be here again in four years, but that this
is a process that has evolved because of past problems, not
because somehow there was a new invention of a different
remedy. I think our Witnesses have been very helpful in us
making the record complete and I thank the Chair for his
calling this hearing today and yield back.
Mr. Johnson of Georgia. I thank the Ranking Member and this
concludes today's hearing. I want to thank all the Witnesses
for your testimony today.
Without objection, all Members will have five legislative
days to submit additional written questions for the Witnesses
or additional materials for the record. Without objection, the
hearing is adjourned.
[Whereupon, at 12:08 p.m., the Subcommittee was adjourned.]
APPENDIX
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QUESTIONS AND RESPONSES
FOR THE RECORD
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