The recent decision in SAS Institute v. Iancu — in
combination with the proposed shift from a broadest reasonable
interpretation (BRI) standard to the Phillips standard for
claim construction used in district court — moves trials at
the U.S. Patent Trial and Appeal Board toward being the most likely
forum for deciding claim construction and patent validity. It also
signals that PTAB trials are becoming a truer
"alternative" to litigation, as Congress envisioned under
the America Invents Act.
A New Trial is Born
Under the AIA, Congress created PTAB trials as a cost-effective
alternative to district court litigation. See 35 U.S.C. §§ 316(b), 326(b) (2012). However, in the first five
years since the trials went into effect, the result has been an
increase in PTAB trials running concurrently with district court
litigation pertaining to the same patent. The AIA did not expressly
prohibit such redundancy; instead, it relied upon the district
courts to decide whether to
