There's a different (and higher) standard (burden) of proof in a District court than in front of the PTO. It can cause inconsistent results. (See Judge Newman Again Questions the Constitutionality of “Do Over” Patent Reexamination). While Judge Newman's issue could be corrected by aligning the burden of proof between the two venues or increasingly staying patent proceedings awaiting reexamination in the face of 35 USC 302 ("Any person at any time may file a request for reexamination by the Office of any claim of a patent on the basis of any prior art cited under the provisions of section 301 of this title"), it's currently harder to prove invalidity in the courts than the patent office due to presumption of validity, which we seemingly find increasingly suspect, in particular for a new field of patentability (software) lacking valid patented prior art.

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• Google did a really bad job with defense on the patents - Authored by: Anonymous on Tuesday, May 22 2012 @ 10:02 AM EDT