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ARTICLE · 25 APRIL 2018

How The SAS Institute Ruling Will Impact PTAB Practice

Ropes & Gray LLP
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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....

United StatesIntellectual Property
Scott A. McKeown
Scott A. McKeown
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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.

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