Post-SAS, To File Or Not To File A Preliminary Response?

By Christopher McKee ( July 30, 2018, 2:02 PM EDT) -- On April 24, 2018, the U.S. Supreme Court held in SAS that a final written decision under 35 U.S.C. § 318(a) must decide the patentability of all claims challenged in the petition.[1] As a result, if a petitioner has demonstrated a reasonable likelihood of success in proving that at least one claim of the patent at issue is unpatentable, the Patent Trial and Appeal Board will institute on all grounds and all claims raised in the petition. Therefore, if the PTAB decides to institute a trial, the patent owner can no longer hope to have some grounds excluded from the trial by filing a preliminary response....

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