Michael Hawkins Quoted in Law360 Article, 6 Weeks After SAS Institute: Here's What We Know


Michael Hawkins, Principal, was quoted in Law360's article, "6 Weeks After SAS Institute: Here’s What We Know" on June 8, 2018.

Michael Hawkins said that pre-SAS, when partial institutions were possible, it was often unclear whether issues would truly be simplified, as some claims would remain untouched.

"After the SAS Institute decision, we're seeing more and more examples [of courts] citing that all-or-nothing proposition that SAS seems to require," he said. "That factor of the simplification of issues is resoundingly now going to start favoring those seeking a stay."

According to an analysis from Fish & Richardson, roughly 30 percent of the PTAB's institution decisions since SAS Institute have analyzed just a single claim. Hawkins said this is a noticeable increase as compared to before SAS.

"That 30 percent may not be nearly as high as some might have believed, but in reality it is an upward trend," he said.

"The Federal Circuit seems to be drawing a line between those cases where at least one party is requesting a remand for the board to address the noninstituted claims versus those cases where neither party is seeking it," Hawkins said.

The Federal Circuit in PGS also signaled agreement with the PTAB's approach of reviewing all arguments in a petition, not just all claims. The court said it reads SAS as "interpreting the statute to require a simple yes-or-no institution choice ... embracing all challenges included in the petition."

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