In SAS Institute, Inc. v. ComplementSoft, LLC, Nos. 2015-1346 & 2015-1347 (Fed. Cir. June 10, 2016), the Federal Circuit found error in a final written decision rendered by the Patent Trial and Appeal Board. The Board adopted a new construction for a term it had construed differently in its institution decision. The Court stated that the Administrative Procedure Act (APA) prevents the Board from “chang[ing] theories in midstream without giving [the parties] reasonable notice of the change and the opportunity to present argument under the new theory.”
