SAS Institute To Send Patent Owners Screaming Into the Night?
The Supreme Court will get a heavy dose of the PTAB on November 27th. That is the day the High Court will hear oral arguments in both the Oil States and SAS Institute appeals. While almost all of the focus to date has been on Oil States, the case that is likely to have the biggest impact on the PTAB is SAS.
As a reminder, SAS argues that partial PTAB trial institutions are inconsistent with the controlling statutes of the America Invents Act (AIA). That is, if the PTAB finds that at least one claim is demonstrated as reasonably likely to be proven (RLP) unpatentable, the PTAB should institute an IPR trial for all petitioned claims. As of today, if a petitioner challenges, say claims 1-10 of a patent, the PTAB assesses each claim as to the RLP standard. So, if the PTAB is not satisfied as to claims 5-6 of claims 1-10, trial would only go forward on claims 1-4 and 7-10.
If SAS is successful on appeal, PTAB trials would go forward on all claims as long as a single claim of the petition was deemed to meet the RLP standard. This would be a significant change to PTAB trial practice with unfortunate consequences for Patent Owners. Continue Reading SAS Institute & The PTAB: Be Afraid Patent Owners