Argument Preview / Panel Activity

One patent case being argued next week, Mobility Workx, LLC v. Unified Patents, LLC, attracted an amicus brief. In this case, Mobility Workx appeals an adverse decision by the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office in an inter partes review proceeding. On appeal, Mobility Workx presents several arguments that inter partes violates the Constitution. This is our argument preview.

Mobility Workx in its opening brief contends that the “inherent tie between the PTAB’s decisions to institute and the substantial revenue generated by those decisions . . . has created a structural bias unlike any other in the federal executive branch.” Further, it argues that “[t]he structural bias is magnified by an [Administrative Patent Judge]’s lack of judicial independence.” It asserts that APJ performance reviews that depend in part on productivity create a “structural bias inherent in the [America Invents Act] institution decisionmaking process.” In particular, Mobility Workx argues that inter partes review violates its right to due process and qualifies as a taking under the Fifth Amendment.

In its response brief, Unified Patents first argues that Mobility Workx never raised its patentability arguments before the Board and thus waived its opportunity to do so. Second, Unified Patents argues that, should the court decide to hear any patentability arguments, substantial evidence supports the Board’s factual findings that claim 1 of the patent at issue was obvious. Finally, it maintains that Mobility Workx’s constitutional arguments must be denied because it failed to timely raise the issue before the Board and Federal Circuit precedent “confirms that initiating an [inter partes review] proceeding over a pre-AIA patent does not constitute a Fifth Amendment taking.”

The Director of the Patent Office filed a brief as an intervenor. In it, he points out that Mobility Workx “devotes only a fraction of its briefing in this case to any argument relating to the patentability of its claims.” Rather, he maintains, Mobility “focuses on alleged constitutional defects in the administrative proceeding” that he argues is based on Mobility Workx’s “misunderstanding of both due process principles and the USPTO’s compensation practices.”

In its reply brief, Mobility Workx first argues that it did not waive its right to appeal, as it would have been absurd to raise the issue of the PTAB’s propriety in the PTAB itself. Further, Mobility Workx emphasizes that the Director failed to negate the appearance of impropriety of the tie between the PTAB’s decisions and the revenue generated by these proceedings. Finally, Mobility Workx maintains that the PTAB’s decision is not supported by substantial evidence.

US Inventor, Inc. filed an amicus brief in this case. In the brief, it puts forth two arguments, that an alleged “October Effect” and subjectivity of APJ performance standards both support the conclusion that the current post-grant system under the AIA violates due process.

This case will be argued on Monday, May 3. We will report on developments.