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PTAB Can Reach Final Written Decision On Challenges Unlikely To Succeed, PTAB Litigation Blog

February 2019

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In SAS Institute v. Iancu, the Supreme Court held that when the PTAB institutes inter partes review under 35 U.S.C. § 314, it must decide the patentability of all claims the petitioner has challenged. SAS Institute left open the question of how the PTAB should handle the binary application of 35 U.S.C. § 314, especially for grounds that it finds lack a reasonable likelihood of success at institution. According to a recent PTAB decision, the Board held that is able to reach a final written decision on all claims, even those it criticizes or questions in the institution decision.

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