Predicting SAS Institute v. Matal after SCOTUS Oral Arguments
My thoughts continue to be that the statute is very simple and mandates the PTAB to issue a final written decision on all claims challenged. This seemed to be consistent with what Justice Alito and Justice Gorsuch were saying during the oral arguments. However, Justice Sotomayor dominated questioning throughout the early stages of the oral argument, continually saying that what was being sought was a reversal of the Court’s decision in Cuozzo. Justice Breyer, who seemed clearly in favor of the respondent, sought to re-write the statute to find the actions of the PTAB to be in keeping with the text of the statute. Nevertheless, the oral arguments suggest there will be a split among the justices, perhaps along political lines (i.e., liberal wing vs. conservative wing). Should the conservative viewpoint of Justices Alito and Gorsuch prevail there is also a chance that the Supreme Court will rule that the PTAB cannot grant partial institutions… After the conclusion of the oral arguments, I reached out to a number of industry insiders to ask them to provide their thoughts and predictions, which are admittedly quite different than my own analysis. Their answers follow.