Per RPX Data Analysis, Amicus Brief on Alleged PTAB Institution Bias Rests on Shaky Foundation

October 29, 2020

Recently, US Inventor, Inc. (USI) filed a Federal Circuit amicus brief in support of appellant New Vision Gaming & Development, Inc. (New Vision), which has argued in a pending appeal that the Patent Trial and Appeal Board (PTAB) is unduly incentivized to institute America Invents Act (AIA) review trials through its fee structure and incentive compensation system. Both factors allegedly lead the PTAB to favor the institution of trials to increase its caseload, argues New Vision, hence creating a bias towards institution. USI claims to have found “statistically significant” evidence of this bias in the form of an “October Effect” whereby the Board’s Administrative Patent Judges (APJs) are supposedly more likely to institute less meritorious petitions in October than in September—the first and last months of the USPTO’s fiscal year, respectively, which purportedly align with the performance evaluation cycle of the APJs. However, a recent RPX analysis reveals fundamental issues with USI’s study, including a definitional error, questionable methodological decisions, and statistical issues that undermine its conclusion. Now, appellee SG Gaming has filed an opposition brief countering the positions taken by New Vision and USI—in part, citing RPX’s report.

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