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No Due Process Violation By PTAB, Federal Circuit Rules


October 21, 2021

With a partial dissent from Judge Newman, the U.S. Court of Appeals for the Federal Circuit ruled that the structure of the Patent Trial and Appeals Board does not violate due process rights under the U.S. Constitution. Mobility Workx has argued that administrative patent judges have a financial interest in instituting inter partes review (IPR) proceedings. Judge Newman dissented from the majority’s “endorsement of the status quo.” IPWatchdog, where this article appears, has reported on the problematic nature of the PTAB’s bonus structure. Mobility argued that the performance scheme creates an incentive for administrative judges to institute IPR proceedings. Judges can receive bonuses of $4,000 to $10,000, according to Mobility. Salary increases of up to 5% are similarly conditioned on performance reviews. The CAFC reasoned that even if this characterization of compensation were accepted, “APJs do not have a significant financial interest in instituting AIA proceedings to earn a bonus.” Judge Newman agreed with the decision, but said that the constitutional issues raised by Mobility “require more attention than my colleagues have accorded them, and raise new constitutional concerns.”

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