Those familiar with Patent Trial and Appeal Board proceedings
are no doubt aware of some basic trends with respect to post-grant
challenges: Institution rates have dropped over the past two years
to around 60 percent, and the likelihood of at least some
challenged claims surviving a PTAB proceeding has correspondingly
increased. This article, rather than focusing on statistics,
analyzes recent case law developments, rule changes and shifting
legal frameworks, and presents five factors that companies facing
patent infringement claims should consider when determining how to
best leverage the advantages of PTAB proceedings.
SAS Institute Inc. v. Iancu
The U.S. Supreme Court's SAS decision generated significant
debate over whether petitioners or patent owners will benefit more
from the decision. Regardless of the overall balance, it is clear
that the threat of estoppel with respect to prior art has grown
significantly, and petitioners can no longer expect that
