PTAB Chair Quoted in Law360 and Bloomberg BNA on Federal Circuit’s Patent Amendment Rules Decision
Washington, D.C. intellectual property litigation partner and Patent Trial and Appeal Board (PTAB) group chair Scott McKeown was quoted in Oct. 4 articles that appeared in Law360 and Bloomberg BNA’s Patent, Trademark and Copyright Journal. The articles address the Aqua Products, Inc. v. Matal ruling by the full U.S. Court of Appeals for the Federal Circuit that some believe set an easier path for amending patent claims in the U.S. Patent and Trademark Office (PTO) administrative proceeding called inter partes review (IPR). The decision rejects the PTO rule that had put the burden on patent owners to show that their proposed claims are patentable. The Court flipped that burden to the petitioner.
Mr. McKeown notes that the Federal Circuit’s Aqua Products decision is a “giant nothingburger” in terms of amendments becoming more popular or commonplace at the PTAB. Although the burden of patentability has shifted to challengers, ultimately securing amended claims that are patentable will still be a rarity, he suggests. He explains that the posturing of the circuit judges through various concurring opinions on the topic of Chevron Deference is also a prelude to a larger debate now before the U.S. Supreme Court in the SAS Institute v. Matal case.