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Hearsay Hurdle: Proving Nonpatent Literature Is Prior Art

Law360, New York (February 15, 2018, 11:47 AM EST) -- Validity challenges in inter partes review and post-grant review at the Patent Trial and Appeal Board often rely on nonpatent literature publications that petitioners must show to be “prior art.”[1] This presents a twofold challenge for petitioners: First, they must provide evidence that the nonpatent literature was “publicly accessible,”[2] and second, they must ensure that the nonpatent literature and supporting evidence complies with the Federal Rules of Evidence, including hearsay and authentication rules.[3] The nonpatent literature topic has become a hot one leading the PTAB to...
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