PTAB prevails against ‘Big Tech’ bias complaint

A US federal judge dismissed a lawsuit on September 19, claiming that the Patent Trial and Appeal Board (PTAB) has a “pervasive structural bias” against independent inventors.

BE Technology had argued [document originally published by Patentlyo.com] that its constitutional right to due process was violated and that the US Patent and Trademark Office (USPTO) rigs the system in favour of technology giants.

The company’s complaint arises from the board invalidating two of its advertising patents, which several Big Tech companies successfully challenged.

In July,  the US Government and Accountability Office (GAO) issued a report revealing that 75% of surveyed PTAB judges said that control by office directors and board management affected their autonomy.

In dismissing the suit, Judge Jon McCalla said the case did not state a plausible claim for relief, noting the ability to appeal PTAB decisions to the US Court of Appeals to the Federal Circuit guards against any improper bias or abuse by PTAB officials.

The Bivens

Plaintiff BE Technologies essentially alleged that the defendants violated the plaintiffs’ constitutional right to due process under the Fifth Amendment and sought compensatory and punitive damages against the defendants to Bivens and its progeny.

Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics (1971) is a Supreme Court precedent that permits plaintiffs to obtain damages from government officials under very limited circumstances.

Here, the plaintiff contended that the USPTO used “underhanded tactics designed to stack the deck” in favour of the technology giants, and that “the system had been rigged all along”.

The Bivens case allows suits for damages against federal officials for violating the US Constitution in select and circumscribed circumstances. Here, the plaintiff argued in its complaint that Bivens was implicated because of “pervasive structural bias and secret internal policies favouring large industry players often referred to as ‘Big Tech’ and a “corresponding animus towards independent inventors”.

In granting the motion to dismiss, Judge McCalla held that there were “meaningful differences” between BE Technology’s suit and other cases applying Bivens, which didn't involve patents.

Moreover, Congress’ heavy involvement in creating the patent system weighed heavily in Judge McCalla’s analysis, as this shows that Congress may be a better avenue than the courts for addressing perceived harms caused by a purportedly “rigged” system.

But Bivens claims clearly cannot be maintained when a plaintiff has had a chance to address perceived wrongs in another legal forum. Here, the plaintiffs were able to appeal the taking during an appeal to the Federal Circuit, and that appeal properly doomed the plaintiff’s claims as a matter of law.

The Federal Circuit appeal certainly provides a valid remedy for potential biases or abuses by PTAB officials, as you can inject any issue that you want into an appeal of a PTAB decision.

The problem with the plaintiff’s claims here, much like the GAO report, is that ambiguities concerning a “lack of independence” among PTAB judges do not provide any concrete evidence that PTAB judges are using “underhanded tactics designed to stack the deck” against independent inventors.

This ‘boy who cried wolf’ mentality among practitioners does not assist in the process, a process that is necessary in my opinion, of independently investigating whether PTAB judges have in fact been influenced in certain cases to invalidate claims that they would not have otherwise invalidated.

Blair Jacobs is a principal at McKool Smith’s Intellectual Property Group. He can be contacted at:  bjacobs@mckoolsmith.com