High Court Poised to Endorse PTAB & Partial Institution Practices

While I will discuss my more detailed impressions during tomorrow’s webinar, a few quick thoughts.

Oil States

-Article III review of the PTAB, and more particularly de novo review of legal issues, was key to a majority of Justices.

-Trying to distinguish reexamination and IPR never made sense in view of Cuozzo, and it backfired on petitioner.

-Justice Gorsuch appeared to be the only one accepting the real property analogy to patents.

-Patent validity did not resonate as a private right.  The distinction between validity (public) and infringement (private right) appeared to be accepted by the majority.

Prediction: Affirmance. (8-1 or 7-2) — Transcript (here)

SAS Institute

-I assumed this case (given its rather mundane issues from a SCOTUS perspective) was taken as a vehicle to reign in Chevron Deference. Chevron never came up, just straightforward statutory interpretation issues.

-With the exception of Justices Gorsuch and Alito, everyone else seemed to accept the PTAB interpretation given the discretion expressed across the statutory scheme of the AIA.

-The lack of amicus filings (only 1) made clear that this is the case nobody wants; the Court got the message.

Prediction: Affirmance (7-2) — Transcript (here)