Briefing is complete in an appeal asking the Federal Circuit to find that the America Invents Act (AIA) post-grant reviews violate the due process clause of the Constitution based on “structural bias.” New Vision Gaming & Development, Inc. (New Vision) v. SG Gaming, Inc. (SG), f/k/a Bally Gaming Inc., and Andrei Lancu, undersecretary of commerce for intellectual property and director of the United States Patent and Trademark Office (USPTO), Case No. 2020-1399, -1400. New Vision’s recently filed reply brief takes a creative approach to its constitutional argument, previewed by a two-page, attention grabbing introduction: “If a district court charged $20,000 to file a summary judgment motion, and then, after denying the motion, charged another $25,000 to proceed to the merits – and those fees funded court operations and the judges’ salaries and bonuses – that scheme would be considered unconstitutional.” Reply, p. 1. New Vision points to various facts regarding the structure and funding of the Patent Trial and Appeal Board (PTAB) that raise questions of possible “structural pecuniary” bias, arguing they establish an unacceptable appearance of structural pecuniary bias.
