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U.S. Supreme Court building in Washington, D.C.

In SAS Institute v. Matal, the U.S. Supreme Court will decide whether the Patent Trial and Appeal Board’s final written decision must address the patentability of all of the claims challenged by a petitioner instead of just some of them. This case has certainly been overshadowed by Oil States, in which the Supreme Court will determine whether inter partes review (IPR) is constitutional. It seems unlikely, however, that the court granted certiorari in SAS Institute expecting to find IPRs unconstitutional in another case. This article assumes that IPRs and other board proceedings will be upheld as constitutional, and explains why the U.S. Patent and Trademark Office should fully decide instituted petitions as a matter of policy, even if the Supreme Court rules in SAS Institute that doing so is not required by the statute.

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