Government Claims in Arthrex Catch Eye of House Judiciary

As we await the SCOTUS outcome in Arthrex, the Government Accountability Office (GAO) has been tasked with investigating the degree to which the Director might influence individual PTAB outcomes.  In a letter to the GAO from House Judiciary IP Subcommittee Chairman Hank Johnson (D-Ga.) and Ranking Member Darrell Issa (R-Calif.), it was pointed out that the U.S. government has argued in Arthrex  that APJs are inferior officers because they are “subject to significant oversight and control by the Director of the USPTO” who has the ability to “control[] which APJs decide which cases” and “provid[e] policy directives that APJs are obligated to follow.”

The letter (here) expressed a concern that the government has effectively indicated that “PTAB cases may have been decided based on factors outside of the evidentiary record and public legal authority,” which they argued “raises potential due process concerns and would be inconsistent with the intent of Congress in enacting the AIA.” While political appointees are expected to drive overall policy, of course, they are not expected to meddle in individual outcomes. Accordingly, the Subcommittee has tasked the GAO with investigating eight questions designed to explore the Director’s ability to influence individual PTAB decisions, and any instances where the Director has actually influenced the outcome of a decision.
Continue Reading Congress Questions USPTO Director Input to PTAB Trial Outcomes

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?
Continue Reading PTAB Institutional Bias Argument Assailed