PTAB Issues Guidance for Motions to Amend After Aqua Products

Guest Blog by Chief Administrative Patent Judge of the Patent Trial and Appeal Board David Ruschke  The Patent Trial and Appeal Board (Board) has been conducting America Invents Act (AIA) trials for about five years. The trials were designed by Congress to be a faster and less expensive alternative to district court litigation for challenging the validity of a patent. The ability to amend the patent is one aspect of the trials that is particularly unique to the Board as compared to district court litigation. If the Board institutes a trial, the patent owner may file a motion to amend the challenged claims. In the motion, the patent owner may propose substitute claims in place of the originally-patented claims to overcome any unpatentability arguments raised by the petitioner. In October, the Federal Circuit, sitting en banc, issued a decision in Aqua Products, Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017), concerning motion to amend practice before the Board. The…

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