SCOTUS Patent Scorecard Update After Oil States and SAS Institute

On April 24, 2018, the Supreme Court issued Oil States Energy Services, LLC v. Greene’s Energy Group, LLC and SAS Institute Inc. v. Iancu.

Oil States holds that inter partes review of a patent does not violate Article III or the Seventh Amendment of the Constitution. More specifically, the Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB) remains a viable forum to challenge the validity of patent claims, and, as such, Oil States is not pro-patent.

SAS Institute holds that, where the PTO initiates inter partes review of a patent, the PTAB must issue a final written decision addressing the validity of all challenged patent claims. That is, the PTO cannot limit the review to fewer than all of the challenged claims. As such, SAS Institute is not pro-patent.

In the past 13 years, the Supreme Court has issued 34 patent decisions. The tally: 20 decisions are not pro-patent; 7 decisions are pro-patent; and 7 decisions are patent neutral.