On July 20, SAS Institute, Inc., represented by Jones Day, filed its opening brief in the Supreme Court. SAS’s brief amplifies the arguments, initially set forth in its petition for certiorari and reply brief in support of certiorari, that neither the plain language of 35 U.S.C. § 318(a) — which provides that the Patent Trial and Appeal Board in an inter partes review “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner” — nor Chevron deference, supports the Board’s practice of issuing final written decisions on only some of the claims that the IPR petitioner challenged.
SAS’s position has already been supported by an amicus curiae brief by the Intellectual Property Owners Association (IPO), an international trade association representing companies and individuals in all industries and fields of technology that own or are interested in intellectual property rights, and whose membership includes roughly 200 companies and more than 12,000 individuals. Other amicus briefs are expected to be filed next week.
The United States’ brief is due to be filed on September 5, 2017. Oral argument will likely be held in late October or early November.