Meeting of the Minds

Precedent, Persuasion, and the PTAB

David L. Cavanaugh and Jonathan R. Stroud

©2016. Published in Landslide, Vol. 8, No. , March/April 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

In the first three years since the Leahy-Smith America Invents Act (AIA) established post-grant proceedings, parties have filed thousands of covered business method reviews (CBMs) and inter partes reviews (IPRs), resulting in more than 700 final written decisions, thousands of orders, and tens of thousands of pages of written opinion from the Patent Trial and Appeal Board (PTAB).1 This deluge of decisions and information leads logically to questions about the relative weight of opinions and orders, their precedential value, and whether and how parties should cite to—or rely on—them. The purpose of this article is to explore the precedential value of PTAB decisions and how they might bind the PTAB and others in subsequent matters.

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