admitted art

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Iancu Memorandum Withstands Appellate Scrutiny

Last summer, a guidance memo was issued to the Patent Trial & Appeal Board (PTAB) on the use of Applicant Admitted Prior Art (AAPA) in IPR proceedings.  The memo (here) concluded that an inter partes review (IPR) must be based on a prior art patent or printed publication, and that admissions regarding prior art in the challenged patent cannot serve as the basis for instituting an IPR.  But, the memo explained that such statements, may provide evidence of the general knowledge possessed by a person of ordinary skill in the art, and may be used to support an obviousness argument in conjunction with one or more prior art patents or printed publications.

So, AAPA can still be leveraged, just not as an actual prior art reference of a trial ground. Yesterday, the CAFC considered the subject of this memo and agreed with agency’s view.
Continue Reading CAFC Endorses PTAB Treatment of Admitted Art

Agency Memorandum Clears Up Long Standing PTAB Debate…For Now

Earlier this week, a guidance memo was issued to the Patent Trial & Appeal Board (PTAB) on the use of Applicant Admitted Prior Art (AAPA) in IPR proceedings.  Much like the agency’s earlier 101 Guidelines on Patent Subject Matter Eligibility, the AAPA Guidance is more a pronouncement of the agency’s independent view of the law as opposed to more traditional implementation guidance on regulatory practices or new CAFC/SCOTUS jurisprudence.  As we know from the Federal Circuit’s feedback on the 101 Guidelines, such independent pronouncements are given little weight outside the agency.

Nevertheless, it is at least helpful to practitioners to have a definitive answer on this issue given the years of PTAB panel variability.  But, this guidance seems a bit short-sighted to my eye.
Continue Reading Admitted Art Ruled Out as IPR Trial Ground Reference