Data Analysis: Amicus Brief On Alleged PTAB Institution Bias Rests On Shaky Foundation

INTRODUCTION

In a pending appeal to the Federal Circuit, Appellant New Vision Gaming & Development, Inc. ("New Vision") argues that the Patent Trial and Appeal Board's (PTAB's) structure and process for deciding whether to institute America Invents Act (AIA) trials violate the Due Process Clause of the US Constitution. Among other arguments, New Vision alleges that because the PTAB is entitled to additional fees when petitions are instituted, the PTAB is incentivized to institute AIA trial proceedings to collect those fees. New Vision further argues that the incentive compensation structure of the PTAB leadership and the Administrative Patent Judges ("APJs") favors the institution of trials to increase the PTAB's caseload, hence creating a bias towards institution.