SAS Weighs in Favor of Stay Pre-Institution

At the time SAS Institute first raised its challenge to the partial institution practices of the Patent Trial & Appeal Board (PTAB), I explained that should this argument ultimately prevail that it would be bad news for Patent Owners. Patent Owners facing a motion to stay pending PTAB review frequently leveraged partial institutions to defeat the stay. Such motions were denied because one of the factors considered in the motion analysis is the potential for “simplification of issues for trial.”  And where a trial would eventually be conducted regardless of PTAB outcome — the case when there was a partial institution — this factor weighed strongly in favor of Patent Owners continuing the district court litigation .

Post-SAS, this argument is now gone. The impact of SAS on common stay scenarios is already being felt by Patent Owners.
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Federal Statutes Applicable to Tribes Absent Expression to the Contrary

In addition to the state sovereign immunity dispute now headed to the Federal Circuit, you might recall that the Patent Trial & Appeal Board (PTAB) was also considering the related question of whether sovereign immunity applies to Board proceedings involving Native American tribes. Last Friday, the Board decided that tribal immunity does not apply to USPTO proceedings in Mylan v. Saint Regis Mohawk Tribe.
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