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In addition, the Patent Office is currently undertaking an invalidity re-examination of Flemings patents.

The Court observed that if the patent office did not have all material facts before it, the patent office's considered judgment in granting the patent may lose significant force. Semiconductor Components Industries, LLC, the PTAB provided new guidance to practitioners regarding the eligibility of conference papers as printed publications for use as prior art...

As a result, the Court said that in most cases in which new prior art is present, the jury should be instructed to consider, in determining whether the accused infringer has proved the defense of invalidity, that the jury had "heard evidence that the PTO had no opportunity to evaluate before granting the patent." This type of instruction does not change the alleged infringer's burden of proof; but when the alleged infringer presents new prior art as part of its defense, this type of instruction should make it easier to convince the jury that the patent is invalid. For my business' website, I often use fairly generic photos I find on Google Images or other internet sites.

282 as a defense to an infringement action, an alleged infringer must prove the patent invalid by clear and convincing evidence.

But there was good news for alleged infringers as well: in affirming the existing standard of proof, the Court stated its approval of a jury instruction that may make some patents easier to invalidate.

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On Thursday, the Supreme Court affirmed the long-standing rule that in asserting patent invalidity under 35 U. This result was good news for patent owners, who faced the possibility that the Court would reduce the standard of proof for invalidating a patent.

Second, in rejecting the argument that a lower standard of proof should be applied when considering prior art that was not before the patent office, the Court held that nothing in section 282's text suggested that Congress intended to adopt a standard of proof that would rise and fall with the facts of each case.

The Court acknowledged that there were strong policy arguments both for and against a strong presumption of validity, but stated that it was in no position to judge the comparative force of those policy arguments.

The law has long been that patents are presumed valid, that deference should be shown to Patent Office determinations of patent validity, and that proof of invalidity must meet a heightened evidentiary standard: “clear and convincing” evidence, rather than merely a “preponderance” of the evidence.

In , the Supreme Court considered two issues: (1) whether the “clear and convincing” standard should continue to apply at all to patent invalidity; and (2) if so, whether the standard should be reduced to a “preponderance” when the challenge to validity is based on prior art that was not before the Patent Office when the patent issued.

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