AIA Institution Rates Following Supreme Court’s

SAS Decision -

On April 24, 2018, the Supreme Court issued its decision in SAS Institute v. Iancu, holding that when the Patent Trial and Appeal Board (PTAB) institutes an America Invents Act (AIA) trial, it must decide the patentability of all claims challenged in the petition. Many observers have hypothesized that this decision may decrease institution rates if the PTAB denies institution of petitions because the PTAB deems a subset of the challenges non-meritorious. Although still too early to know with certainty whether SAS will have a significant or lasting impact on institution rates, we reviewed the more than 300 post SAS institution decisions issued through the first half of August to investigate whether there was any apparent change in institution rate as compared to historical averages. Because the number of decisions is still relatively small, this is necessarily a rough and limited measure of the impact of SAS on institution rates. This analysis revealed that the PTAB’s institution rate has seen a slight decrease from historical averages.