PTAB Proposes Burden of Persuasion Rules for AIA Amendments, PTAB Litigation Blog
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On October 21, 2019, the Patent Trial and Appeal Board ("PTAB") of the United States Patent and Trademark Office ("USPTO") provided a Notice of Proposed Rulemaking ("NPRM") concerning their rules of practice in allocating burdens of persuasion on motions to amend in America Invents Act ("AIA") trial proceedings before the PTAB. These new proposed rules will allocate to patent owners the burden of demonstrating that a motion to amend complies with necessary statutory and regulatory requirements, and to petitioner, the burden to show the unpatentability of substitute claims proposed in a motion to amend. In addition, the proposed rules grant the PTAB discretion to, in the interests of justice, grant or deny a motion to amend based on the record in the proceeding and regardless of the burdens assigned to any party.
