Panel Dependency Reinforces Bad Behaviors
As discussed last October, the Patent Trial & Appeal Board’s (PTAB) lack of consistency in addressing attorney misbehavior is a growing problem. Whether PTAB panels are busy attending to statutory deadlines on their docket, or turning a blind eye to procedural squabbles to better focus on the merits, the end result is that attorney misbehavior remains largely unchecked.
Attorneys that practice in district courts would never disregard applicable local rules. And district court judges that author such would not allow their rules to be ignored. While some PTAB judges take similar ownership of their forum, such APJs are increasingly few and far between. As a result, the “it doesn’t hurt to try” philosophy is becoming the de facto rule on many aspects of PTAB procedure.
There are numerous aspects of PTAB procedural practice that are inconsistently policed. From uploading unauthorized motions and exhibits, to contacting the Board without a meet and confer and/or adding improper argument to emails, or simply misrepresenting case law and easily ascertainable facts during oral argument, there is rarely any meaningful downside for such conduct. At worst, an email/order is issued to the effect of “the parties are reminded not to do X.” Likewise, oral argument issues are shrugged off as “we will decide on the papers anyway.”
While I certainly sympathize with APJs having to deal with such distractions, letting such practices go is not helping. Moreover, allowing the behaving party additional briefing to respond to the misbehaving party is not a remedy – it is an additional, and unnecessary, cost. Parties should not have to pay for additional legal services that are only made necessary through the misconduct of another.
It seems to me that any and all procedural disputes (e.g., unauthorized filings) could be easily handled by a dedicated APJ or Ombudsperson rather than the assigned merits panel. Likewise, the ability to take such issues to such an authority (divorced from the merits) would provide additional leverage in avoiding these disputes in the first instance. While an individual APJ may not see the same attorney again for months if not years, a dedicated troubleshooter could quickly identify habitual offenders for potential discipline.
As to inconsistency in email practices, the agency could stop this by providing a simple online template where the sender would acknowledge the meet-and-confer by checking a box to enable the communication, have a field limited in characters for explaining the disputed issue, and a corresponding field for the opposing party. All of this could be easily automated and standardized through the PTO web portal.
While many of these behaviors may seem minor in character to an APJ focused on the merits, the optics of such inconsistencies undermine the credibility of the forum and increase costs for the public. I would hope to see more policing of these matters going forward.