PTAB judges continually impress me with their scrupulous fairness. I noticed it every day of my service as an administrative patent judge and every day since. Here’s a great example of that careful attention.
The party with the burden of proof argues last, right? Well, mostly right. In IPR’s (and PGR’s and CBM’s), the Petitioner bears the ultimate burden to prove a proposition of unpatentability by a preponderance of the evidence.… More
A Petitioner faces great peril if it gets an IPR instituted but then doesn’t prevail in the final written decision. That is, the Petitioner puts in enough to get a trial but not enough to win it. A Petitioner thus caught finds itself bound even more inextricably to the patent it sought to free itself from.
How can this happen? After all, if there was enough in the Petition to persuade the PTAB that a trial is justified,… More
With only sixty pages (Editor’s update: 14,000 words) in which to present a thorough treatment of every issue, the Petitioner must balance depth of analysis against the number of challenges. The fear of estoppel often drives Petitioners to present many challenges with a shallow analysis that is supported by a perfunctory expert declaration rehashing the Petition. The Board often institutes on only a handful of such challenges,… More