JONES DAY TALKS®: PTAB Litigation Blog Reaches 500 Posts ... and the PTAB Reacts to COVID-19
As Jones Day’s PTAB Litigation Blog marks its 500th posting, Dave Cochran and Matt Johnson discuss current patent litigation developments, near-term trends, and how the PTAB is handling cases during the COVID-19 lock down.
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Read the full transcript below:
Dave Dalton:
Not long after the US Patent and Trademark Offices Patent Trial and Appeals Board, or PTAB, was established, Jones Day rolled out its PTAB blog. The blog just posted its 500th entry. That's impressive. But how did that happen? Jones Day's Dave Cochran and Matt Johnson are here to tell us. And you'll also hear how PTAB is handling the COVID-19 situation. You might be surprised. I'm Dave Dalton. You're listening to JONES DAY TALKS®.
Dave Dalton:
Dave Cochran is one of Jones Day's leading patent trial and appeal board for PTAB litigators. In 25 years of practice, he has handled every type of patent matter for clients, primarily in high technology fields. Dave was part of the three lawyer Jones Day team that prevailed at the Supreme Court in SAS Institute Inc. vs. Iancu, fundamentally changing PTAB litigation practice.
Dave Dalton:
Matt Johnson is one of the firm's primary contexts on the practice before the PTAB. He represents both petitioners and patent owners at the board. And Matt is the administrator of Jones Day's PTAB litigation blog. You can find that at PTAB litigation blog, that's one word Ptablitigationblog.com.
Dave Dalton:
Dave, Matt, thanks for being here today.
Matt Johnson:
It is good to talk to you.
Dave Dalton:
You know, 500 blog posts, 500. I don't think I've done 500 of anything in my entire life. You hit 500 home runs in the major as you go to Cooperstown and they put a statue of you up in your hometown. So sincere congratulations. I mean, a lot of people start these things, but the follow-through and so forth is just astounding. What you guys done. 500 posts around four years. So great accomplishment! But let's back up for a second.
Dave Dalton:
Let's start with Matt. Matt, in case someone listening isn't familiar, can you talk a little bit about what the PTAB blog is, what it covers, who the reader targets are, where we can find it, that kind of thing.
Matt Johnson:
Sure thing. Yeah. Jones Day's PTAB blog, Patent Trial and Appeal Board blog, is aptly named a blog that covers the US Patent and Trademark Offices Patent Trial and Appeal Board. That is where litigants can go to challenge the validity of a patent, typically one that's been asserted against them, and it provides a less expensive mechanism for challenging and litigating the validity of patents. The PTAB, the Patent Trial and Appeal Board at the PTO, has been around since September, 2012. And we've been covering it at Jones Day's PTAB blog over the last four years.
Matt Johnson:
The blog can be found at Ptablitigationblog.com, and it's really targeted toward anyone involved in technology, or that might be involved in technology litigation. Patent litigation at the PTAB, at the Patent Trial Appeal Board, is really a component of any patent litigation today. It's something that someone who's been accused of infringement is going to think of right away as being an option to try to extricate themselves from the litigation that they've become involved with.
Dave Dalton:
Okay, so it comes out what, roughly twice a week, you shoot for?
Matt Johnson:
Two or three times a week, I think. Two years ago we had 150 articles. Last year, we were just north of 130. So there's a lot of interesting stuff going on, a lot to write about at the PTAB.
Dave Dalton:
Walk me through the process. Is there an editorial calendar, or do lawyers on the team come up with their topics, or how does content and information find its way to the blog?
Matt Johnson:
I think we'll talk about this through the session today. Really the key to this is having a great team to help work on these blog posts. We have a team here at Jones Day of over 30 attorneys who are involved at the PTAB, excited, interested in the PTAB, and regularly authoring articles at the blog.
Matt Johnson:
We have kind of a loose calendar of assignments. Three folks each week who are kind of up for writing an article that week. And each of the authors, as I said, is very interested in the PTAB as a forum and is keeping an eye out on interesting cases, interesting decisions. And oftentimes they say, "Hey, I want to write about this topic this week." And I say, "Go for it. I'll make sure no one else grabs that topic." So we don't have anyone doing double duty on a single case.
Matt Johnson:
Now if people need suggestions, the rest of us are keeping an eye on things and are flagging interesting decisions as they come out. And, as I said, between 1200 and 1500 cases are being filed at the PTAB each year. So there are tons of decisions coming out. There's always lots of interesting things going on.
Dave Cochran:
And we try to flag a few of those a week to write about.
Dave Dalton:
Right, no shortage of content, certainly, or fodder.
Dave Dalton:
Let's go over to Dave Cochran for a second. Dave, a lot of blogs fail. In fact, Laura Bell, who's also the content manager here at Jones Day with me. We get approached occasionally by a group that says we want to start a blog and we don't discourage them, certainly, but we want them to know what they're in for. And I always say, "Hey, you can get by for awhile on enthusiasm and adrenaline and oh, this is something brand new, but you know, it's tougher than it sounds." Bottom line is a lot of blogs fail. Why has this one endured and become so successful, do you think?
Dave Cochran:
Well, I think it's because, if the blog gets stale, then it's going to fail. I mean, I think that's the first rule of blogging. If you're going to have a successful blog, you can't let it become stale. You have to have continuous, fresh, updated content. That is, in my mind, the number one rule of successful blogging, whether it's legal blogging, or entertainment blogging, or anything else. Nobody's going to come look at your stuff, if you have the same stuff that you had two weeks ago. So that's the number one rule of blogging in my mind. And yeah, I think for when we started down the path of this particular blog, five years ago, six years ago, we were recognized because this was an entirely new area of law.
Dave Cochran:
The PTAB had started issuing decisions in around 2013. And because of the volume of decisions that were coming out, that we had an opportunity because of the amount of content that we were pretty sure we could produce, that we had an opportunity to meet that primary rule that we could continuously keep our blog fresh and have new content. And that's really why it's been successful. It's continued unabated, really, for the last five years as the PTAB has continued to make new law, refining certain points and coming up with new decisions. It's provided just a fertile ground for us to be able to come up with ideas for articles.
Dave Cochran:
And because, as Matt was saying, another key to our success is we have a commitment on the part of 30 plus Jones Day lawyers in the IP practice to write articles on a routine basis per our schedule. And so we have this continuous slew of content. So that's the second thing.
Dave Cochran:
And the third thing is, Matt has done an awesome job curating the content, keeping us on track, keeping people on schedule, and making sure that we were publishing new articles at least two or three times a week. And so those are really the three keys to our success. But the first one is foremost, which is you've got to have fresh content all the time. And we've been able to do that with the PTAB Litigation blog.
Dave Dalton:
You explained that very well. And please take no offense, you almost make it sound easy. Dave, what's the hardest thing about this? You're looking at 130-150 posts here. What's the toughest thing about keeping it fresh like you're talking about and generating new content?
Dave Cochran:
Yes, I think the hardest thing for us now, which is hard but it's actually a good thing, because we have generated so much content, as we know. Over 500 articles in almost every area of PTAB practice and procedure. We're starting to get to the point where, even though they're continuing to come out with new decisions every day and every week, but the hard part for us has been finding the topics that are really important.
Dave Cochran:
And there's a smaller number of people who are associated with the blog, who sort of have a more global knowledge of all of the articles that we've produced. Such that when we see a particular decision, we can say, "Hey, wait a minute. This is a little bit, maybe this is a nuance of something we've written on before. We can link back to one of our prior articles." But it's finding the articles because there's enough decisions, you could publish an article every single day. But the point we are now, the hard part, if there really is, one is finding articles on topics that are really making a difference in PTAB practice. And that can be a little bit difficult. But then again, because there's so many decisions, we've been able to manage that pretty well, I think.
Dave Dalton:
Well, it's great that you say that. In fact, I think that might be part of the success. The fact that it would be so easy for you guys to coast and say, "Oh, let's just slap this up there, because there was another decision." The fact that you're sifting and sorting and filtering through this and saying, "Okay, here's something new. Here's something different. Here's something better. Here's what we ought to be writing about." That that shows attention to detail that probably is one of the reasons you've done 500 posts and people are still showing up to read. I'm sorry, man. I think I jumped in. You were about to say something.
Matt Johnson:
I was going to echo that point that you just made, Dave, that blogs not only have a fatigue issue on the writing side, but there's also potential fatigue for the readers. And there are hundreds and thousands of decisions coming out of the PTAB every year. And if you write about every run of the mill obviousness finding or non-obviousness finding of claims, people are going to become disinterested. They're not going to feel like they're getting something out of the five minutes they spend every couple of days reading your publication. So I think it's important to try to have a teaching point in each article saying why this is important, what you should take away to your practice, to your company. Why was it important for me to read this content? And I think that's really the key. It's a challenge, but I think it makes the exercise worthwhile to the readership.
Matt Johnson:
And it makes the efforts worthwhile to those of us who are working on the blog, doing the drafting, because this is our practice area. This is our world. And so we want to be studying in depth the cases that are informing our practice, teaching us new strategy points, new procedural points. So when one of these issues comes up in one of the PTAB matters that we're working on, we're all over it. We know what the issues are, what the arguments to make are without having to do a lot of research. We don't have to spend a bunch of client hours researching these issues because we've seen them before as they've come up for other people, as we've drafted the blog posts.
Matt Johnson:
I think, it's improved our ability to be good advocate strategists, and it made us more efficient practitioners at the PTAB as well.
Dave Cochran:
Just one, one point there, Dave, which Matt alluded to, which I think is really critical. Early on, certainly we're the only people who were blogging about the Patent Trial and Appeal Board. I mean, I think we have the best blog, but I think here's the reason why.
Dave Cochran:
Early on some of our competitors were writing about the PTAB decisions, but all they were really doing was summarizing what the decision was. They didn't really have any analysis. And early on, we decided, as part of our blog strategy that, we were going to find cases that really made a difference, and not only report on the case, but also provide some analysis and some tips and pointers. And if you look at any of our 500 blog postings, almost every single one of them ends with practice pointers. So it's not just reporting on cases, but it's explaining to our clients, why is the case important? And what are the practice pointers, whether you're the petitioner or the patent owner. And I think that's also what's made our blogs successful. It's not just reporting on cases because anybody can do that.
Dave Dalton:
Well, sure. There's probably a PTAB site somewhere where the decisions are recorded and laid out for anybody to go and read. I think that's where your value added is, right? In terms of your analysis, your tips, your pointers, and so forth.
Dave Dalton:
As a matter of fact, Matt, you tell a great story. You and Dave were in Cleveland last summer, we were doing some video, you told me there's some evidence, anecdotally at least, that there are people in Washington, maybe even at the PTAB, that are big fans of the blog. This is true, right? In terms of, you guys have become kind of a go-to source for information in both sides of this, I think.
Matt Johnson:
Yeah, it is kind of fun. We were able to dig into the log files and see who's been reading her articles, and we do get a fair amount of readership from the Patent Office, likely from judges at the Patent Trial and Appeal Board. And you know, that's been part of the fun in practicing in this area.
Matt Johnson:
As Dave said earlier, that this forum has only been around for going on eight years now. And there was no body of law. There was no PTAB law in September of 2012 when this thing got kicked off. And so by advocating in this forum, we've gotten to help formulate, help structure what the proper procedures are, how this forum should work. And, and I think the PTAB blog is just another piece of that, where we can analyze the cases that are coming out, help inform other judges who, naturally can't read every decision that's coming out of their body. We can help highlight the important cases for them, help them be more informed and help maybe direct the court in a small way. So it's really been a lot of fun to practice in this forum over the last seven, eight years.
Dave Dalton:
And you've had 500 plus blog posts. I'm not going to ask you which was your favorite one, but looking back, as you think about the track record and the information you've put out there, are there any particular posts from the past four years that stand out in terms of reader reaction or for other reasons that we look back at this like, oh yeah, that was a great one. Anything pop to mind?
Matt Johnson:
Yeah. I mean, naturally I think it's going to be April 2018 for us and the SAS decision, which we've talked about a number of times. It's a case that Jones Day represented the SAS Institute on a procedural argument that really became fundamental to how practice at the PTAB works.
Matt Johnson:
Dave was on the case and there for the oral argument at the Supreme Court. And we were sitting there waiting in late April of 2018, and there were actually two cases that came out that day from the Supreme Court on the Patent Trial and Appeal Board. And we thought the other one was actually going to be the more noteworthy case. The Oil States case where the Supreme Court was dealing with the question of whether the PTAB was legal, whether it was constitutional, or whether it was going to be struck down in its entirety.
Matt Johnson:
The Oil States decision came out first and said the PTAB is legal, it's going to go forward. And I remember circulating an email to the practice noting that. And then just a few minutes later, the SAS decision came out and shows asset prevailed on their procedural point. And as I've read that decision, we saw how it was going to be transformative for PTAB practice. And so getting to write about that case, that decision, and how we were involved in that case from the very beginning was really exciting and a lot of fun. And by far the most fun case to cover at the blog.
Dave Dalton:
Big day, that's for sure. I wasn't involved at the level that you were, but hearing you guys talk about it since, we did a couple of podcasts and some of the publications. I know that was certainly monumental.
Dave Dalton:
Hey, speaking of monumental, let's go back to Dave Cochran for a second. We're in the midst of something kind of different right now, 2020 we'll always remember as year of COVID-19, and those effects are being felt everywhere. How will this virus situation impact PTAB activity? Example: are you anticipating a backlog of cases when things start to return to normal, assuming they do get back to normal? If I'm a stakeholder in the whole PTAB process, what should I expect over the next couple-three months?
Dave Cochran:
It's full steam ahead at the Patent Trial and Appeal Board. The COVID shutdown has not really impacted the timing of matters that are being handled at the Patent Trial and Appeal Board. And the reason for that, unlike patent litigation in the district courts, which is by and large slowed to a halt because of this, litigation at the Patent Trial and Appeal Board is going forward unabated. And the reason is because the statute that created the Patent Trial and Appeal Board and created the inter-partes review process requires that they complete their litigation matters within one year of the institution decision. So the statute requires them to go forward. They have no choice. They have a little bit of leeway. They can give themselves a six month reprieve from that one year date, but they typically don't do that. And so because of the one year deadline mostly, the Patent Trial and Appeal Board is going forward full bore.
Dave Cochran:
They've giving people some relief from certain deadlines, but hearings are still occurring. I mentioned last week we conducted our first remote video PTAB hearing, which I did hear from my basement.
Dave Dalton:
Little inside baseball few people out there.
Dave Cochran:
But it went really well. And the thing about the patent office is they have been moving to remote work for the last 10 years, really. Of all the federal agencies, they are probably at the cutting edge of remote work. And so the patent examiners have been working remotely for years. And it's fairly typical, when you show up in Virginia at the Patent Office for a PTAB oral argument, it's fairly typical that one or two or, usually not all three judges, but at least one or two of the judges are remote, and they could be Dallas or Silicon Valley or Detroit or in other places.
Dave Cochran:
And so the Patent Office is, like I said, of all the federal agencies, probably the best equipped to move to the remote work environment. And so cases at the Patent Trial and Appeal Board are going forward full steam. And so I don't expect that there's going to be any backlog going forward because that the cases are not being slowed down at all.
Dave Dalton:
Well, you know, that is exactly the opposite of what I was expecting to hear based on everything else that's going on right now. But that's good news, I think, and kudos to them, I guess. Jeez, they're doing things right. Well then let's move aside from that. Forget COVID-19 for a second and go back to Matt. And you're on top this stuff, you keep data, you watch this stuff, you edit this blog and everything, but talk about what PTAB activity was like earlier this year. And have you noticed any trends we might want to watch for as we move forward through the rest of 2020?
Matt Johnson:
The statistics from new case filings, new petition filings are pretty on par with 2019 through the first five months of fiscal year 2020, through the end of February. We're on pace for between 1300 and 1400 cases, new petitions for inter parties review in 2020. That's right on pace with 2019.
Matt Johnson:
And there's some interesting cases going on that folks definitely want to have an eye on. One is the Arthrex case that we talked about in our last podcast, where the federal circuit had said that the appointment of PTAB judges was unconstitutional and they hacked at the statutes a bit to change the status of those judges to make them what they felt was constitutional. That case has been continuing to work through the federal circuit who has now confirmed that they're not going to change that opinion from October of last year. And all three parties in that case, the appellant, the appellee and the US Government, the patent office indicated that they may file petitions for further review at the Supreme Court. So that's going to continue to be, I think, the biggest hot button issue case to watch over the coming months.
Matt Johnson:
But as Dave said, the PTAB continues to roll forward. It'll be interesting to see what March statistics look like, but there's lots of going on at the board and cases are still going to be filed there in large numbers. And we don't see that slowing down.
Dave Dalton:
I think that's terrific news. Dave Cochran, let's go back to the blog for a second, which is kind of one of the reasons for this call today. You guys hit on something. You found a formula here. There's a lot of interest in this information. As you pointed out, it was something brand new. America Invents Act creates PTAB. And here we are almost a decade later and it's thriving and it's a great forum and so forth.
Dave Dalton:
But, and I say this in all sincerity, your team, you guys are thought leaders in this, when it comes to PTAB issues. In terms of leveraging that position as thought leaders or kind of being on top of this, is there anything you're thinking about doing the might leverage Jones Day reputation this area? I mean, are there any other ways you might... I know you guys are working with clients, you're going to hearings, you're mentoring associates and so forth. You've got a lot on your plate. But is there anything else? If you had a wishlist in terms of what else can we do in this PTAB space? Anything come to mind?
Dave Cochran:
There's a couple of things that Matt and I have been talking about that we're looking at kicking off this year. But the one thing that I think would be really interesting for us, and it goes back to the fact that we've published 500 plus articles now. By the time the podcast is broadcast, it'll be some number greater than that. And most of the articles are between two and three pages in length, single space typed. So if you make a compendium of all those articles, you're looking at a book of PTAB knowledge and lore. That's anywhere from 1000 to 1500 pages of length. That's a lot of information that we've collected up.
Dave Cochran:
So one of the things that we've been talking about doing, since we're constantly creating new content, is to form a compendium, if you will, of PTAB knowledge where maybe quarterly or twice a year, in addition to our regular blog postings, we put out a Jones Day compendium of our PTAB articles by subject matter. So that somebody who's really interested in learning about the PTAB, coming up to speed, law students that are interested in patent law and PTAB procedure, that they can have a volume that they can go to, to really get up to speed on the latest of what's happening at the Patent Trial and Appeal Board.
Dave Cochran:
And again, there are some books that you can get, but they cost hundreds of dollars. And as soon as they're published, they get relatively stale. So I think because our content is so fresh, that we have an opportunity to create an updated compendium of PTAB knowledge that we can use going forward. And I'm hopeful that Matt and I working together, we'll be able to pull that up this year, because I think that would be a great addition and would really leverage all the hard work that the Jones Day IP attorneys have put into the blog up until this point.
Dave Dalton:
There are two things going on.
Dave Dalton:
Number one, you've demonstrated there's an appetite for this information out there. I mean, that's been proven by the blog traffic and the response you're getting from people who read.
Dave Dalton:
Second of all, certainly you've got a team together that's prolific in terms of getting content together and putting it out. So I think you might have a winner there, that's for certain. So good luck with that. I know, I know a couple of good editors at Jones Day that might want to help out.
Dave Cochran:
We'll take you up on that.
Dave Dalton:
We'll be in touch, we'll be attached. Hey Matt, let's wrap it up with this. You and Dave separately touched on this a little bit earlier, but let's just make it crystal clear. Any advice for others considering publishing a blog, whether it's legal or other professional services, or just in general, what do they need to know? Or what do you wish you'd known when you were launching the blog?
Matt Johnson:
Yeah, definitely. I admit it's a fair amount of work. Luckily we have a nice robust team to help us out here, but it is a fair amount of effort that goes into this pretty easy to see. But it's also very, very enjoyable. I think for a lot of us who are on the team, this is our world. This is in our legal practice. So it's something that we're interested in and excited about.
Matt Johnson:
Working on the blog has benefits for us. It's a great way for us to stay on top of all the details of the PTAB topic. It's a great way for us to let others in the world know that we know everything about this topic, but I think those benefits to us as the authors of the blog really make it worthwhile and stave off that fatigue that I think hits a lot of blogs and ultimately leads to their demise a bit.
Matt Johnson:
But here we have a topic that is going to provide us a continual source of content. And then we're backed up by this great team. 30 Jones Day attorneys who are excited, passionate about this topic, chipping in on very frequent basis. It makes this really a pleasure to do, fun to do, and really is what keeps this ball rolling.
Dave Dalton:
Absolutely. Hey, we will leave it right there. Congratulations to you both. Great accomplishment. You know, you guys found a terrific area of the law to focus on and the response out there has been great. So wonderful work and congrats. And we're proud to be affiliated even with some small way with these quarterly podcasts. So nice job and congratulations.
Dave Cochran:
Thanks Dave.
Dave Dalton:
Dave, Matt, thanks.
Matt Johnson:
I really, really appreciate all your support.
Dave Dalton:
We'll do this again soon. Take care. Bye-bye.
Dave Dalton:
You can find complete bios of Dave Cochran and Matt Johnson at jonesday.com and be sure to check out Jones Day PTAB Litigation blog at ptablitigationblog.com. That's again, one word, ptablitigationblog.com.
Dave Dalton:
Subscribe to JONES DAY TALKS® at Apple podcasts and wherever else quality podcasts are found. As always, we thank you for listening to JONES DAY TALKS®. I'm Dave Dalton. We'll talk to you next time.
Speaker 4:
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