Divided Federal Circuit Rejects Claims of PTAB Bias

October 15, 2021

The Federal Circuit has rejected allegations of structural bias within the Patent Trial and Appeal Board (PTAB). On October 13, the court issued a precedential decision rejecting arguments from Mobility Workx, LLC that the PTAB’s leadership and 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. Rather, the court held that any financial incentives present were “too remote” under applicable precedent to constitute a due process violation. The Federal Circuit also rejected arguments based on an amicus brief from US Inventor (USI) purporting to show statistical evidence of this bias, arguments that RPX subsequently rebutted in its own analyses. Circuit Judge Pauline Newman also dissented in part as to both bias and constitutionality, arguing for the latter that institution decisions as presently structured may violate the Appointments Clause under the Supreme Court’s Arthrex decision.

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