New Vision Gaming & Development, Inc. v. SG Gaming, Inc.


Issue(s) Presented

  1. “Whether the unusual structure for instituting and funding AIA post-grant reviews violates the Due Process Clause in view of Tumey v. Ohio, 273 U.S. 510 (1927), and its progeny, which establish ‘structural bias’ as a violation of due process.”
  2. “Whether the Patent Trial and Appeal Board (‘PTAB’) decision should be set aside under 5 U.S.C. § 706(2)(A) because the PTAB (a) did not consider, as part of its discretion to deny institution, a contractual obligation that precluded an AIA post-grant challenge, and (b) placed the burden on the patent owner to identify a ‘contractual estoppel defense.’”
  3. “Whether the PTAB’s decision should be vacated and remanded because the PTAB panel that decided the case was unconstitutional under the Appointments Clause.”
  4. “Whether the PTAB erred in holding the claims as directed to patent-ineligible subject matter under 35 U.S.C. § 101.”


“Because Arthrex issued after the Board’s final-written decisions and after New Vision sought Board rehearing, New Vision has not waived its Arthrex challenge by raising it for the first time in its opening brief before this Court . . . Thus, we vacate and remand for further proceedings consistent with Arthrex, and we need not reach any other issue presented in this case.”