Federal Circuit Sidesteps Bias Claims in New Vision Ruling as Dissent Flags Forum Selection Issue

May 21, 2021

Recent years have seen a variety of appeals challenging certain aspects of the Patent Trial and Appeal Board (PTAB) on constitutional grounds. But this took a new turn in two recent appeals in which the patent owners both argued that the PTAB’s compensation structure creates a financial bias in favor of instituting non-meritorious America Invents Act (AIA) reviews, purportedly in violation of the US Constitution’s Due Process clause. In both cases, US Inventor (USI) filed amicus briefs seeking to bolster these allegations of bias using data on institution rates, though RPX has since identified flaws in its underlying methodology and rebutted its conclusions. Now the Federal Circuit has resolved one of those appeals, in New Vision Gaming v. SG Gaming, without addressing these claims of bias, though oral arguments in the second case suggest that the Federal Circuit is still pondering the issue. Meanwhile, a partial dissent in New Vision additionally questions the impact of forum selection clauses on the PTAB.

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