How the SAS Institute Ruling Will Impact PTAB Practice

Patent Owners Will Not Like the Post-SAS PTAB Last month, I predicted a 7-2 affirmance of Oil States (although I had Kennedy in the dissent with Gorsuch rather than Roberts). Still, the outcome of this closely watched case was hardly a surprise, nor was the content of the dissent. (here) While some will read the “narrow” holding characterization of the Oil States majority as a beacon of hope for further constitutional challenges, I don’t see that at all. Rather, I see the Court making clear that it is not indirectly endorsing any PTAB practices highlighted in the briefing, oral argument, and in the dissent — panel stacking perhaps being the most noteworthy. Going forward, I don’t see much Oil States impact at the PTAB. SAS Institute on the other hand, will bring about some of the most significant PTAB practice changes to date. As a reminder, SAS argued that partial PTAB trial institutions are inconsistent with the controlling…

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