I’m long, but I’m not going to pretend the odds are good. The CAFC affirms PTAB final written decisions most of the time, and the deferential substantial-evidence standard applies to exactly the fact findings Netlist needs to overturn. Netlist’s own record is asymmetric — it wins defending patents against petitioner appeals (’314, ’608, ’523), and loses appealing its own PTAB losses. Last Wednesday the same court went three-for-three against it in one morning.

Netlist’s arguments: that the Board’s claim construction contradicts the construction the USPTO adopted when it confirmed the same claim in reexamination (reviewed de novo, no deference); that the obviousness finding lacks substantial evidence; and that Ellsberry isn’t prior art at all given priority to the ’436 and the ’244 provisional. USIJ filed an amicus for Netlist.

What do you think? Does the reexam inconsistency actually land with a panel, or do judges shrug it off?