"Any potential that the withheld documents shed light on government misconduct... does not bear on the application of Exemption 5 under FOIA, the Fourth Circuit concluded."
"The Fourth Circuit found that decision drafts circulated to nonpanel APJs were subject to FOIA's exemption for predecisional and deliberative documents and were not unprotected ex parte communications."
"Malone filed a FOIA request with the USPTO seeking information related to the reconstitution of the APJ panel overseeing inter partes review (IPR) proceedings brought by Palo Alto Networks to challenge Centripetal Networks' patent claims. According to the Fourth Circuit, Malone's FOIA request focused on the original APJ panel, the panel's reconstitution following disclosures of one APJ's stock interest in joined party Cisco, and the reconstituted APJ panel's decision to deny Centripetal's motion to recuse the interested APJ."
"Although the USPTO produced 1,500 responsive documents, the agency withheld documents, including redlined versions of PTAB decisions at various stages of the editing and review process, and emails between PTAB employees discussing analysis of the issues presented by those drafts. The USPTO asserted that those documents were subject to FOIA's predecisional and deliberative document exemption codified at 5 U.S.C. § 552(b)(5) ("
""Exemption 5"), because they both expressed proposed agency actions antecedent to adopting a position, and"
A FOIA request sought records about APJ paneling and the reconstitution of an APJ panel overseeing inter partes review proceedings. The USPTO produced about 1,500 responsive documents but withheld redlined PTAB decision drafts and emails among PTAB employees analyzing issues reflected in those drafts. The withheld materials were treated as predecisional and deliberative because they expressed proposed agency actions before adoption of final positions. The court concluded that potential information about government misconduct did not affect the application of Exemption 5. The court also found the drafts were not unprotected ex parte communications, even though they circulated to nonpanel APJs.
#foia #exemption-5 #patent-trial-and-appeal-board #administrative-patent-judges #inter-partes-review
Read at IPWatchdog.com | Patents & Intellectual Property Law
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