Today, the USPTO published a Notice of Proposed Rulemaking (NPRM) concerning burdens of persuasion on motions to amend claims in trials (e.g., inter partes review) before the Patent Trial and Appeal Board (PTAB).
It proposes a petitioner challenging a patent bear the burden to show unpatentability of substitute claims
proposed in the motion and the patent owner bear the burden to show that a
motion complies with rules and the statutory requirements. Further PTAB can determine the patentability of the substitute claims based on the record. Note this proposed rule is favorable to patent owners.
The USPTO invites public comments on the rule by December 23, 2019.
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