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About that link ... | 167 comments | Create New Account
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About that link ...
Authored by: Anonymous on Wednesday, October 24 2012 @ 09:11 PM EDT

You are wrong. The standard of evidence in the USPTO is preponderance of the evidence (50%) and in a jury trial it is clear and convincing evidence (75%).

MPEP 2286 - http://www.uspto.gov/web/offices/pac/mpep/s2286.html

The issuance of a final Federal Court decision upholding validity during an ex parte reexamination also will have no binding effect on the examination of the reexamination. This is because the court states in Ethicon v.Quigg, 849 F.2d 1422, 1428, 7 USPQ2d 1152, 1157 (Fed. Cir. 1988) that the Office is not bound by a court’s holding of patent validity and should continue the reexamination. The court notes that district courts and the Office use different standards of proof in determining invalidity, and thus, on the same evidence, could quite correctly come to different conclusions. Specifically, invalidity in a district court must be shown by “clear and convincing” evidence, whereas in the Office, it is sufficient to show nonpatentability by a “preponderance of evidence.” Since the “clear and convincing” standard is harder to satisfy than the “preponderance” standard, deference will ordinarily be accorded to the factual findings of the court where the evidence before the Office and the court is the same. If sufficient reasons are present, claims held valid by the court may be rejected in reexamination.

[ Reply to This | Parent | # ]

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