Precedent, Persuasion, And The PTAB

Co-authored by Jonathan R. Stroud*

In the first three years since the Leahy-Smith America Invents Act (AIA) established post-grant proceedings, parties have filed thousands of covered business method reviews (CBMs) and inter partes reviews (IPRs), resulting in more than 700 final written decisions, thousands of orders, and tens of thousands of pages of written opinion from the Patent Trial and Appeal Board (PTAB).1 This deluge of decisions and information leads logically to questions about the relative weight of opinions and orders, their precedential value, and whether and how parties should cite to—or rely on—them. The purpose of this article is to explore the precedential value of PTAB decisions and how they might bind the PTAB and others in subsequent matters.