Final Rule Package Updates Current PTAB Practices with Two Additions
The USPTO will publish a final rule package today (draft here) that largely presents the earlier Notice of Proposed Rule Making in final form. Most of the changes addressed rules outdated by the SCOTUS decision in SAS Institute, or simply codified existing practices, such as sur-replies. As such, the bulk of the earlier proposals were not controversial.
However, the earlier Notice also proposed one new idea, eliminating the presumption accorded to petitioner testimonial evidence in the preliminary proceeding (when disputed by patent owner testimonial evidence to the contrary). This proposal was the focus of much of the public commentary.
Despite most bar associations opposing this change, the final rule will in fact eliminate the presumption, starting January 11th (January 9th being a Saturday). The Final Rule also adds a new rule-based prohibition on Sur-reply filings.
Continue Reading PTAB to Eliminate Institution Presumption on January 11th