PTAB Institutional Bias Argument Assailed

RPX Data Disputes Bias Allegations

As I explained a few months back, a due process challenge is pending at the CAFC that challenges the PTAB's fee model. New Vision Gaming v. SG Gaming Inc. The argument, in a nutshell, is that because the fees for AIA trial proceedings include a separate component for the trial, and that collection of this fee makes up about 40% of the PTAB's yearly budget, that this amounts to "a structural bias unlike any other in the federal executive branch." (My take on that theory is found in the earlier post).

An amicus filing made in New Vision further alleges that the PTAB demonstrates a bias only in October?

The amicus (here) argues that there is an "October Effect" whereby 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 align with the conclusion of the APJs evaluation periods. The amicus suggests that APJs