Antedating References At PTAB: Trends And Pitfalls

Law360, New York (April 17, 2017, 5:15 PM EDT) -- Christopher Cherry

Jonathan Bowser

Roger Lee Patent owners generally face unfavorable odds in attempting to antedate references in America Invents Act trials, including inter partes review proceedings. Oftentimes, Patent Trial and Appeal Board decisions concerning antedating references turn on the sufficiency of the evidence submitted by patent owners. Trends are emerging from PTAB decisions addressing attempts by patent owners to antedate (or “swear behind”) references in AIA trials.

Evidentiary Hurdles of Antedating a Reference

For patents subject to pre-AIA 35 U.S.C. § 102, patent owners can disqualify...
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