ParkerVision v. Rule 36

By: Josh Sloat

The Battle for Dignity and Due Process

If a court stripped away your property rights, wouldn’t you at least want an explanation? The answer is obvious, but the reality is appalling. The practice of revoking patent rights on appeal without explanation has been happening to inventors at the Federal Circuit Court of Appeals (CAFC) at an alarming rate. In over 43% of PTAB cases on appeal at the CAFC, inventors receive a single-word response – “AFFIRMED” – rather than an opinion. This practice is referred to as the application of Rule 36 and, in cases involving the PTAB, amounts to the seizure of property from an administrative agency without any reasoning provided by a constitutionally created Article III court. 

ParkerVision has filed a petition for a writ of certiorari with the Supreme Court and recently submitted a reply brief in an attempt to get the Supreme Court to take up this innovation-crippling practice. In the coming days, the justices are scheduled to discuss the petition in private conference, where they will vote on whether to take the case.
​

Our Guests on the Way to SCOTUS

To help us unpack Rule 36 practice and what ParkerVision is hoping to do about it, Dr. Ashley Sloat and I have enlisted the assistance of the three people closest to this case and its implications:

• Jeffrey Parker, CEO of ParkerVision – an absolute pioneer in wireless technology.
• Amit Vora, appellate litigator at Kasowitz Benson Torres, representing ParkerVision in its petition for cert with the Supreme Court.
• Juliette Fassett from the Fair Inventing Fund, advocating for inventors’ rights. Juliette is an inventor herself, with over 30 years of experience building consumer product companies.

​

Episode Overview

Through an illuminating and sometimes heartbreaking interview, Jeff, Amit, and Juliette walk us through the core issues of what comes down to some very fundamental questions about both due process and inventor dignity. Along the way, we discuss:

• Innovation focus. The significance of ParkerVision’s innovations.
• State of the law. Rule 36, §144, and the PTAB.
• ParkerVision's cert. What sets this cert apart from prior attempts to get the Court to take on Rule 36.
• Dignity. The importance of judicial respect and the dignity of a reasoned explanation for patent holders who’ve had their rights stripped away.
• Due process. Why judicial reasoning is key to what makes a court decision a valid court decision.​
• The chilling effect that application of Rule 36 has on patent law, investment, and innovation.

​

How to Listen

Patently Strategic is available on all major podcasting directories, including Apple Podcasts and Spotify. We're also available on 12 other directories including Stitcher, iHeart Radio, and TuneIn, so you should be able to find us wherever you listen to podcasts.
​

How to Watch

In addition to everywhere you listen to podcasts, this complete video interview is available on our YouTube channel. We’re also publishing excerpts as short-form videos on Instagram Reels, YouTube Shorts, and TikTok alongside our monthly Mossoff Minutes where we provide updates and quick takes on movements in patent reform, significant court rulings, and innovation policy happenings, all with the assistance of Professor Adam Mossoff. 
​

How to Help

if you're wondering what you can do to help, you can always write your legislators should the courts let us down here, but in the meantime, you can do what we're doing – and that's sharing these concerns and the very real human stories behind them to help to raise broader public awareness. Please, like, subscribe, and more importantly, share! This matters for us. And it REALLY matters for our kids. 
​

Resources

To further explore the topics discussed, see the following past episodes and resources:

Related Episodes

• Why Patents Exist with Professor Adam Mossoff
• PTAB Survival Guide
• American Inventor Horror Story
• Patent Wars: Innovators, Revolutionaries, and the Race to Reform

Related Reading

• ParkerVision's Petition for Cert with SCOTUS
• ParkerVision's Rule 36 Reply Brief

Transcripts​
We're also providing computer-generated transcripts for improved accessibility and additional reference opportunities.
​