Well, that didn't take long.  The U.S. Patent and Trademark Office issued Guidance today, just two days after the Supreme Court decision in SAS Institute Inc. v. Iancu came down, regarding how the Patent Trial and Appeal Board (PTAB) will apply the Court's mandate in that inter partes review (IPR) decisions are all or nothing with respect to challenged claims ("Guidance on the Impact of SAS on AIA Trial Proceedings").

The Guidance is simple:  going forward (i.e., for all pending and future-filed petitions), the Board will institute on all challenged claims so long as the petitioner has shown a reasonable likelihood of invalidating at least one of the claims.  For cases where the Board has engaged the parties in partial institution proceedings, the Board "may" issue an order "supplementing the institution decision to institute on all challenges raised in the petition."  In such cases the Board also has discretion to take action "permitting additional time, briefing, discovery, and/or oral argument."  Examples included in the Guidance include granting additional time for the Patent Owner Response or, if the statutory twelve-month time is close to expiry, taking advantage of the additional six months provided by the statute for extraordinary cases.  The Guidance stresses however that such decisions will be made on a case-by-case basis.

The Petitioner and Patent Owner responses to such a supplementation order are specified to include a "meet-and-confer" discussion between the parties on whether additional briefing, time, etc. is needed; the Guidance notes that while the Board may (i.e., has the discretion to) act sua sponte, there may be no accommodation of the parties unless they request it.  And of course the parties can affirmatively waive any changes to the briefing schedule or timing, the Guidance suggests.  The result of such a meet-and-confer will be a conference with the Board, which will resolve any failure to agree between the parties.  The Final Written Decision arising from such cases will contain a decision on all challenged claims, both as originally instituted and added through amendment of the institution decision.

The Guidance directs parties to contact the panel (only for case-specific questions) or to submit written questions to the Trials@uspto.gov mailbox.

The Guidance closes by reminding the public that the Office fortuitously scheduled a "Chat with the Chief" webinar on Monday, April 30 at noon EDT, where Chief Patent Judge David Ruschke will discuss the Guidance.