Patent Board Precedent Leaves Prior Art Burden with Applicants

The Patent Trial and Appeal Board’s precedential decision that patent applicants bear the burden of proving an examiner’s evidence against their invention wasn’t widely available comes as practitioners grapple with proving that a reference was publicly accessible.

The onus falls on a patent applicant to provide “evidence or argument” to get around an examiner’s “prima facie case” that a reference could hold up as prior art, the board said in Ex parte Antonio J. Grillo-Lopez. That’s in contrast to the Hulu LLC v. Sound View Innovations LLC precedential decision from the agency’s Precedential Opinion Panel, which required inter partes review ...