By Igor V. Timofeyev, Howard Herr, Phillip W. Citroën, Naveen Modi & Joseph Palys on Oct 09, 2017
Posted in Patent Litigation
Upending the current motion-to-amend practice before the Patent Trial and Appeal Board (“the PTAB”), a deeply fractured en banc Federal Circuit in Aqua Products., Inc. v. Matal, No. 2015-1177 (Fed. Cir. Oct. 4, 2017), has shifted the burden of persuasion onto petitioners to establish the unpatentability of amended claims proffered by patent owners during inter partes review (“IPR”) proceedings. Under the PTAB’s current practice, patent owners have faced great difficulty in successfully amending claims in IPR proceedings. That may change in light of the Federal Circuit’s ruling in Aqua Products.