Don't Read Too Much Into The Institution Decision

Many PTAB watchers attach great significance to a decision to institute, but it's important to remember that a "DI" does not pre-ordain the ultimate decision. It's best to think of the DI as a notice of what issues it has decided remain open for trial.  Issues typically will include claim construction and a list of prior art challenges selected for review. (Expect ever less claim construction in institution decisions as the Board streamlines operations to conserve judicial resources.) The Board always is careful to note that the claim construction is preliminary and based on the record as it exists at the time of institution, and that no unpatentability determinations have been made.