![]() , inter partes review imposes a different burden of proof on the challenger. This possibility, however, has long been present in our patent system, which provides different tracks-one in the and one in the courts-for the review and adjudication of patent claims. As explained by the Supreme Court on Cuozzo, this may lead to different outcomes:Ī district court may find a patent claim to be valid, and the may later cancel that claim in its own review. The idea here is that in litigation, invalidity must be proven with clear and convincing evidence while inter partes review requires only a preponderance of the evidence. § 316(e)) rather than by clear and convincing evidence as required in district court litigation,” meaning that the PTAB properly may reach a different conclusion based on the same evidence. The PTAB determined that a “petitioner in an inter partes review proves unpatentability by a preponderance of the evidence (see 35 U.S.C. Nevertheless, even if the record were the same, Novartis’s argument would fail as a matter of law. In the Inter Partes Review, the USPTO concluded that those prior court decisions regarding obviousness need not be considered since the record was different at the PTAB – albeit admittedly ‘substantively the same.’ On appeal, the Federal Circuit rejected the PTAB’s reasoning as a trivial likely insufficient distinction, but instead found that the different evidentiary standard was what justified the result: 2015)), the district court considered Noven’s obviousness argument and fount it lacking merit. In my view, the statement is still silly and wrong even when applied in context. The PTAB is obviously bound by Supreme Court and other precedent. When taken out-of-context, we can all agree that the statement is silly and wrong. The most interesting aspects of the decision are found under the surprising heading: Prior Judicial Opinions Did Not Bind the PTAB. ![]() Several prior court decisions (including those involving the petitioner here) had upheld the patent’s validity against parallel obviousness challenges. This short opinion by Judge Wallach affirms the PTAB findings that the claims of two Novartis patents are invalid as obvious.
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