Post-Grant for Practitioners | SAS and Oil States: One Year Later

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In April of 2018, the Supreme Court issued its much-anticipated decisions in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC and SAS Institute, Inc. v. Iancu, both of which have had significant impacts on post-grant practice. In Oil States, the Court upheld the constitutionality of IPR proceedings under the public rights doctrine. In SAS Institute, the Court ended the PTAB’s practice of partial institution, holding that it must institute IPR proceedings either on all of the challenged claims or none of the challenged claims.

At the one year anniversary of these decisions, Fish Principals Dorothy Whelan, Karl Renner, and Rob Courtney look back over the previous year and discuss how these cases have changed post-grant practice. Topics of discussion include:

  • The implications of SAS for post-grant estoppel (and beyond)
  • Lingering questions left unanswered by the “narrow” holding of Oil States
  • Strategic considerations for petitioners and patent owners