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than evidence previously considered by the PTO.” If based on “new evidence,” “the challenger’s burden to persuade the jury of its invalidity defense by clear and convincing evidence may be easier to sustain.” This “easier” burden of persuasion, the Court ruled, should “most often” be explained to patent case juries in the jury instructions.

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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.In , Microsoft challenged the "clear and convincing" standard, arguing that the lower "preponderance of the evidence" standard should be used to overcome the presumption of patent validity created in section 282.Microsoft further argued that, even if the traditional "clear and convincing" evidence standard were applied to prior art that had been considered by the patent office during examination, the lower "preponderance of the evidence" should be applied to new prior art that is, prior art not previously considered by the patent office in granting the patent.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.Others argued that the heightened standard properly limits the ability of juries to override patent issuance decisions of the Patent Office.A “public use” of a claimed invention, by anyone, prior to the critical date will render the corresponding patent claims invalid (or unpatentable), if the invention, at the time of the public use, was ready for patenting. Under well established pre-AIA case law, an invention was deemed to have been “ready for patenting” if it had been reduced to practice or if drawings and/or descriptions of the invention had been prepared that were sufficiently specific to enable one of ordinary skill in the art to practice the claimed invention. Reduction to practice, however, requires that an invention be shown to work for its intended purposes. Courts consider the following factors when assessing whether or not a use is experimental: (1) the length of the test period; (2) any confidentiality agreement (though the presence or absence of a confidentiality agreement is generally not dispositive); (3) any records of testing; (4) any monitoring and control of the test results; (5) the number of tests; and (6) the length of the test period in relation to tests of similar inventions. One reason for this approach is to secure the earliest possible filing date thereby pre-dating as much would-be prior art as possible. Under pre-AIA Section 102(b), the public use had to be carried out within the United States and more than one year prior to the filing of a patent application in order to be invalidating. Patent and Trademark Office has not opined on whether an experimental use exception remains under the AIA, public use does clearly still remain an impediment to patentability. The legal principles set out above, while seemingly straight-forward enough, leave ample room for case-specific interpretation and application when it comes to the question of whether the use of a claimed invention in connection with carrying out clinical trials will constitute an invalidating public use.The circumstances under which clinical trials involving administration of a drug product that occur prior to the critical date may constitute an invalidating public use is a murky area of the law and courts’ decisions in this area are highly dependent on the facts of the case before them.ESCORT Inc., and Beltronics Inc., the industry leaders of radar detection technology, were vindicated recently as a federal jury sided with them in invalidating several key radar detector patent claims asserted against the companies, Case No. Equally as noteworthy, is the jury's finding that there was no willful infringement on ESCORTs part. The jury verdict came after an 11-day trial in which ESCORT and Beltronics were accused of infringing claims of U. In fact, it was the work of Steven Orr (an employee of ESCORT's predecessor Cincinnati Microwave) that the jury latched onto in invalidating several of the key patent claims.

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