Evidence submitted in a trial before the Patent Trial and Appeal Board (PTAB) varies considerably from that submitted in district court litigation in terms of form, substance and method and timing of presentation. A major factor to consider when selecting evidence to present in a PTAB trial is the audience receiving the evidence, which in the case of a PTAB trial is a panel of administrative patent judges (APJs) with formal scientific education and training and years of experience in patent law. Numerous orders regarding motions to exclude have noted the PTAB’s disfavor for such motions, usually noting the strong public policy for making all information filed in a non-jury, quasi-judicial administrative proceeding available to the public, especially in the determination of patentability of claims of an issued patent. This article will explore various issues, from the perspective of the petitioner and the patent owner, that must be considered when selecting evidence to be submitted in a PTAB trial.
Know Your Audience
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