The Patent Trial and Appeal Board’s precedential decision that patent applicants bear the burden of proving an examiner’s evidence against their invention wasn’t widely available comes as practitioners grapple with proving that a reference was publicly accessible.
Grillo-Lopez imposes a tough new burden on applicants, which will make it more difficult and costly for inventors to protect their inventions,” Kia Freeman, partner at McCarter & English LLP, said in an email. “The new burden will be particularly difficult for solo inventors and small businesses to withstand,” Freeman said.