U.S. Patent Trial and Appeal Board Decisions: Secondary Considerations of Non-Obviousness—More on the Likelihood of Getting Discovery

The third in a series, this article continues the discussion of how the U.S. Patent Trial and Appeal Board (“PTAB”) is approaching secondary considerations of non-obviousness in inter partes review (“IPR”) and covered business method patent (“CBM”) decision-making. This article provides further insight into how the PTAB is handling requests for discovery seeking information supporting secondary consideration arguments. To date, the PTAB has begun to formulate a strict but still-evolving standard for how and when it will grant discovery regarding secondary considerations evidence.

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