Apple Inc. is lobbing explosive charges of bias and ex parte contact in an administrative trial recently conducted before the U.S. Patent and Trademark Office.

The iPhone maker accuses its opponent of secretly lobbying the administrative judges presiding over their case, the chief judge who supervises them and the cabinet secretary who oversees the USPTO—without any of it being formally disclosed to Apple.

What's more, Apple said, the strategy worked: At opponent Voip-Pal.com's suggestion, the PTO substituted three new judges into their case, after the previous three had issued a preliminary ruling in Apple's favor. Following trial, the three new judges ruled the other way, upholding the validity of a patent that Voip-Pal is asserting against Apple in Nevada federal court.

“The record is irrefutable that the board took actions adverse to Apple after receiving Voip-Pal's unauthorized ex parte communications asking for that precise result,” writes Apple's lawyer, Erise IP partner Adam Seitz. “The inference of prejudice is inescapable.”

Apple's gambit to reverse the panel's judgment faces an uphill battle. For one thing, the company acknowledges it got wind of one of the communications last May, but held its tongue until after losing the case six months later.

Still, the serious charges come at an awkward time for the PTO and its Patent Trial and Appeal Board, a relatively new entity that hears administrative challenges to patent validity in a process known as inter partes review (IPR). The U.S. Supreme Court is currently weighing a constitutional challenge to the IPR process, which was established as part of the 2011 America Invents Act as a quicker and less expensive alternative to district court trials .

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In the challenge, Oil States Energy Services, backed by an army of mostly small patent owners, argue that without life tenure and other trappings of the federal judiciary, the PTAB is too vulnerable to political pressure from the executive branch. At the November oral arguments, Chief Justice John Roberts and Justice Neil Gorsuch asked repeatedly if PTAB leadership was improperly using panel composition to influence trial outcomes. Now Apple, the No. 1 most frequent filer of IPR petitions, is alleging that's exactly what happened in its Voip-Pal case.

Voip-Pal, the owner of several patents related to voice-over internet technology, did not immediately respond to a request for comment. Its outside counsel at Knobbe Martens and the U.S. Patent and Trademark Office declined to comment through spokesmen.

One thing is certain: Voip-Pal and its former CEO, Thomas E. Sawyer, have left Apple a spectacular paper trail. Sawyer wrote a series of six letters to PTAB Chief Judge David Ruschke and Commerce Secretary Wilbur Ross between May and October, complaining about how the PTAB was handling the Apple-Voip-Pal IPR. Voip-Pal posted all six of the letters on its website last fall, even publicizing them with a press release.

Voip-Pal said in its press release that Sawyer was acting independently of the company. But his most recent letter stated that he still acts as an adviser to Voip-Pal, and has been in regular contact with Voip-Pal's attorneys about the IPR process.

Sawyer sent his first letter May 1 to Ruschke. He introduces himself as a former adviser to Presidents Richard Nixon, Gerald Ford, Ronald Reagan and the first President George Bush. He explained that he's a past CEO and chairman of Voip-Pal, but said he no longer has a formal role with the company.

He makes what seems to be a reasonable point. Because there is no database of financial information for PTAB judges as there is with the federal judiciary, it's more difficult to determine conflicts of interest, Sawyer wrote. But through public sources he identified alleged conflicts with all three administrative judges presiding over Apple v. Voip-Pal. Judge Stacy Margolies had represented Apple in 2011 while working at Fish & Richardson; Judge Barbara Benoit also had worked at Fish; and Judge Lynne Pettigrew once worked at AT&T, which is also involved in the '815 litigation. Margolies, Benoit and Pettigrew had made a preliminary finding that Voip-Pal's patent was likely invalid as obvious and had set the case for trial.

At a June conference call with the board, Apple discovered that three new PTAB judges—Josiah Cocks, Jennifer Meyer Chagnon and John Hudalla—had taken the place of the previous panel. Apple said there was no discussion or explanation as to why.

Sawyer, meanwhile, was far from satisfied. He wrote to Ruschke on June 21 and July 11 to ask why the change had been made, and more important, why the new panel hadn't dissolved the previous judges' decision to institute proceedings. “It seems clear that the only way to make the patent owner even partially 'whole' is to allow the new panel to reconsider the institution decision,” he complained. The June 21 letter is copied to President Donald Trump; Commerce Secretary Ross; the justices of the U.S. Supreme Court; members of the Senate Judiciary Committee; and to the PTAB panel, Cocks, Chagnon and Hudalla, among others.

When Ruschke didn't respond, Sawyer followed up directly with Ross, the cabinet secretary who oversees the PTO, on Aug. 31. Sawyer again observed that he had worked in four previous presidential administrations, and complained that the PTAB's conduct, if it occurred in the private sector, “might have constituted organized crime.”

Apple is seizing in particular on the most recent letter, dated Oct. 23, which states that he continues to work for Voip-Pal as an adviser and has been consulting with the company's attorneys for several months about the IPR. “The Oct. 23 letter thus makes clear that Dr. Sawyer is no rogue actor,” Seitz wrote in Apple's motion. “Rather, Voip-Pal knew about—and assisted in—Dr. Sawyer's ex parte communications with the board designed to influence this proceeding.”

As soon as Voip-Pal or its attorneys became aware of the ex parte communications, they had a duty to formally notify Apple and the board, Seitz writes.

Instead, the newly constituted panel held a trial and issued its final written decision in Voip-Pal's favor on Nov. 20.

At the time Voip-Pal CEO Emil Malak hailed the decision as a new era at the PTAB. “I'm hoping that we at Voip-Pal have started a trend that will show judgments based on merits rather than a bias towards infringers,” he told IPWatchdog.

In its press release about Sawyer's letters, the company said they were written “independent of Voip-Pal management” and that many of the addressees are “personal friends and or acquaintances of Dr. Sawyer, who has spent a significant portion of his distinguished career working in government.”

Apple said that despite Voip-Pal's attempts at publicity, it wasn't aware of the June, July and August letters until November, after briefing and oral argument were concluded. But Seitz does acknowledge that Sawyer sent copies of his May 1 and Oct. 23 letters to the Nevada federal judge who's presiding over Voip-Pal's parallel district court proceedings against Apple. Unlike the PTAB, the clerk of that court entered the letters into the court record, putting Apple on notice.

When the PTAB held a Dec. 19 conference call to air Apple's concerns, Voip-Pal told the board that its primary outside counsel on the IPR, Knobbe partners Kerry Taylor and John Carson, would not be attending. Instead Voip-Pal substituted Kevin Malek of Malek Moss Legal Group in their place. Voip-Pal's formal response to Apple's motion is due Jan. 12. In the meantime, the board has now posted Sawyer's letters to the IPR docket and stayed the deadline for a formal motion for rehearing.

Apple said it isn't accusing the board of ill will. It believes the PTAB acted out of good intentions when apparently responding to Voip-Pal's allegations of bias among the original panel members. “Yet the board's actions were not vetted through open discourse and Apple had no opportunity to respond,” Seitz wrote. That was the first step in instilling the replacement panel with “a reciprocal bias against Apple.”

“The common-sense problem with removing a judge (or an entire panel of judges) in the face of bias allegations after a substantive decision has been rendered is that the newly appointed adjudicators necessarily assume the task of fixing what led to the substitution in the first place (a task that Voip-Pal's subsequent ex parte communications demanded),” Seitz writes.

He and Apple are formally asking that the board enter judgment for Apple as a sanction against Voip-Pal. “Extraordinary circumstances call for extraordinary measures,” Seitz writes. Alternatively, he said, the board should vacate its decision and “provide a constitutionally correct process going forward after consultation with the parties to ensure fairness.”