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
Often overlooked due to its late timing and limited scope, the Motion for Observations provides a mechanism for introducing dispositive evidence when there’s little further the opponent can do about it.
The motion is limited to addressing cross-examination testimony of the opponent’s reply witnesses. There are normally at most two substantive Replies in a proceeding: the Petitioner’s Reply in support of the Petition,… More
The proper reliance on new evidence in a Reply is a common issue at the patent office. The Board in Volkswagen Group of America, Inc. v. Emerachem Holdings, LLC, IPR2014-01555 (Paper 36), recently authorized briefing on whether the Petitioner had properly relied on new evidence in its Reply:
New issues raised in a reply have been, and continue to be,… More
When I was an Adminsitrative Patent Judge, I expected to go into an IPR trial hearing with a pretty good idea of who was going to win. I was surpised to find that rarely to be the case. I was far more open to persuasion at that point than I had expected to be.
Some commentators have likened PTAB trial hearings to oral argument at the Federal Circuit. … More