Current Developments at the BPAI
The USPTO Board of Patent Appeals and Interferences
May 17, 2012
This page presents noteworthy cases and developments at the BPAI. As they are announced, rules, rulemaking packages, and other developments of interest at the Board will also be reported, including court decisions affecting the BPAI. Items are in reverse chronological order, with new entries appearing first.
New: U.S. Court of Appeals for the Federal Circuit
In re Baxter International, Inc., No. 2011-1073 (Fed. Cir. May 17, 2012) (Newman (dissenting), Lourie (author), Moore, JJ.). The Federal Circuit ruled that a claim previously held valid by a federal district court was properly found not valid in a subsequent reexamination proceeding in view of newly‑asserted evidence and a different standard of proof. Slip op. at 13–16. The Board was not bound by the district court’s ruling because the USPTO applies the lower “preponderance of the evidence” standard instead of the higher “clear and convincing evidence” standard of the district court, and interprets claims under the broadest reasonable construction standard. Slip op. at 6–7. The dissent criticized the Board’s decision, stating that it improperly nullifies the district court’s ruling.
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Practice Manual for the BPAI
Mr. Miller is the author of the book, Patent Appeals at the USPTO: Appellate Advocacy and Practice.
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