Federal Circuit Denies Mandamus in Due Process Violations Case Against Big Tech Companies

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday, February 11, denied a petition for writ of mandamus filed by B.E. Technology in November of last year asking the court to intervene to “prevent an unconstitutional deprivation of B.E.’s property rights in the onslaught of IPR proceedings that have been brought to challenge the validity of its most critical patents.” B.E. has been embroiled in litigation with big tech companies like Facebook, Twitter and Google for close to a decade now. The CAFC said in its denial that “B.E. has not shown a clear right to a different result here by relying primarily on a self-published article that is outside of the record.”

In its petition, B.E. relied in part on data from an article published by Ron Katznelson last year revealing that Patent Trial and Appeal Board (PTAB) administrative patent judges (APJs) “earn significantly more, as bonus payments, for final written decisions that result in the cancellation of (as opposed to upholding) the challenged patent.” Katznelson found that APJs “earned an average bonus of … $313.6[0] per Final Written Decision when cancelling patent claims,” as compared to “$2.4[0] per Final Written Decision when uphold[ing] all patent claims.” The paper also charges that the PTAB “maintains a secret internal review committee called the AIA Review Committee (‘ARC’),” which rewrites draft decisions in IPRs “if necessary.” It is not known who publicly serves on the ARC and parties to IPR proceedings cannot interact with the committee. “As a result, IPR proceedings are rendered into show trials, while the substantive decision-making process take place in secret,” said the petition.

B.E. specifically asked the CAFC to direct the PTAB to vacate its decisions to grant institution in four separate inter partes review (IPR) proceedings: Twitter, Inc. and Google LLC v. B.E. Technology, L.L.C., Nos. IPR2021-00482, IPR2021-00483, IPR2021-00484, and IPR2021-00485. The question presented was: “Whether a writ of mandamus should issue to prevent an unconstitutional deprivation of the Petitioner patent owner’s property rights without due process of law?”

In its denial of mandamus, the CAFC said that B.E. “has available means to raise its due process challenge on review from final written decisions”; that the company “has not shown clear legal entitlement to termination of these proceedings”; and that its arguments rely mainly on a “self-published article” and “speculation and conjecture that USPTO leadership may attempt to improperly influence these proceedings in favor of Google and Twitter.”

The court noted that it recently rejected similar arguments raised in the petition in Mobility Workx, LLC v. Unified Pats., LLC, 15 F.4th 1146, 1150 (Fed. Cir. 2021). In that decision, the court ruled that the structure of the PTAB does not violate due process rights under the U.S. Constitution and said there is no evidence that PTAB APJs have a financial interest in instituting IPR proceedings. Judge Newman dissented from the majority’s “endorsement of the status quo.”

Despite its emphasis in Friday’s Order on the “extraordinary” standards required to qualify for mandamus, which it said B.E. had failed to meet, the CAFC has lately granted  quite a few mandamus petitions , chiefly on the topic of venue.

B.E. Technology has said it plans to appeal to the U.S. Supreme Court.