The Burden of Establishing Patent Invalidity: Maintaining a Heightened Evidentiary Standard Despite Increasing 'Verbal Variances'
30 Pages Posted: 25 Feb 2009 Last revised: 26 May 2014
Date Written: February 19, 2009
The patent system needs to be improved, particularly with regard to minimizing the likelihood that undeserving patents are granted and asserted. Some have advised that this problem should be remedied by weakening the presumption of validity, suggesting that "there is no colorable defense for the status quo." This Note suggests arguably colorable defenses for the status quo. First, modifications to the presumption of validity require due care because the presumption of validity is at the center of the carefully crafted patent bargain. Critics of the presumption and its application advocate change based on PTO deference but do not address the Supreme Court's remaining reasons for a heightened evidentiary standard. Such critiques are incomplete and do not exhibit due care. Second, the role of the presumption is not understood well enough to justify changing its evidentiary standards, especially considering that a comparative analysis of the Federal Circuit's and the regional circuits' differing applications might indicate whether different standards result in significantly different case outcomes. Third, the presumption should not be changed until the effects of the possibly forthcoming post-grant review procedures and post-KSR obviousness determinations are analyzed and understood. Modification of the presumption of validity could work at odds to post-grant review while post-KSR obviousness determinations may accomplish the key goals of presumption modification.
Keywords: patent law, patents, patent review, presumption, presumption of validity, clear and convincing, preponderance, federal circuit
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