It is important to note that the jury and the PTO apply different standards when looking at prior art. Under US law, an issued US patent is presumed to be valid. Thus, a jury has to have clear and convincing evidence that a patent is invalid. In contrast, the presumption of validity does not apply in reexamination, the evidentiary standard is much lower for the PTO to invalidate a patent. The PTO uses a preponderance of the evidence standard. Think of it this way: the PTO has to be 51% sure that a patent is invalid while the jury has to be 75% sure. Furthermore, the PTO interprets claims in a broader manner as compared to district courts, which makes the claims more susceptible to prior art. This is one of reasons that reexaminations are so attractive as a compared to invalidating patents in court.

What does all of that mean? It means that under US patent law, it is completely conceivable and consistent for a jury to find patents valid while the PTO finds the exact same patents invalid.

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• Different standards yes.... but.... - Authored by: Anonymous on Tuesday, October 23 2012 @ 03:01 PM EDT
• not quite that simple - different standards - Authored by: joef on Tuesday, October 23 2012 @ 04:37 PM EDT