“Placing the Office’s finger on the scale is precisely what happens when a panel is expanded, and it is particularly concerning to learn that the practice was surreptitiously happening.” – Gene Quinn
The Merit Systems Protection Board (MSPB) issued a decision on May 5 granting Patent Trial and Appeal Board (PTAB) Administrative Patent Judge (APJ) Michael Fitzpatrick’s request for corrective action with respect to alleged retaliatory personnel actions against him by senior management officials at the Department of Commerce and U.S. Patent and Trademark Office (USPTO).
The 131-page decision said that Fitzpatrick filed the appeal to the MSPB in 2021, following punishment for “protected whistleblowing activity as follows:
“(1) he disclosed that agency management officials secretly and illegally interfered with the inter partes review (inter partes review or IPR) process in Adidas AG v. Nike, Inc., No IPR2013-00067 (Adidas/Nike IPR) when they expanded the PTAB review panel from three to five judges after the original three-judge panel had fully decided the case and improperly delayed the issuance of the final decision without notifying the parties that the panel had been expanded; and (2) he disclosed that the United States Deputy Solicitor General had provided “erroneous” information to the United States Supreme Court on behalf of the agency during oral arguments in Oil States Energy Service, LLC v. Greene’s Energy Group, LLC (No. 16-712) (Oil States).”
The retaliatory actions...
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