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. Continue Reading How the SAS Institute Ruling Will Impact PTAB Practice