One area for potential reform is the requisite evidentiary standards that are applied in various patent disputes. In three recent cases, the evidentiary standard to be applied under current patent laws was the product of case law rather than statute.
In the most recent Supreme Court case to consider a patent issue, the court considered the evidentiary standard necessary for a defendant to prove patent invalidity by relying on a prior art reference that was not considered by the USPTO examiner during the prosecution of the asserted patent.
