In a recently filed brief in the Federal Circuit case New Vision Gaming v. SG Gaming, the appellant argues that the PTAB is unconstitutional because the fees charged for the proceeding create a bias towards institution. Specifically, New Vision Gaming claims that PTAB judges stand to benefit from institution and therefore it’s a violation of due process for the judges to make an institution decision.
That claim fails to hold up, because the financial bias argument is baseless, but if it were to be upheld, it would throw into question every single patent currently in force. The financial incentive to grant a patent created by the USPTO fee structure is more clearly apparent and far greater, in monetary terms, than any potential incentive for financial enrichment by the agency or by a PTAB judge deciding whether to institute or deny an IPR.