By James Glass and Richard Lowry (March 5, 2018, 12:26 PM EST) -- Late last year, the U.S. Court of Appeals for the Federal Circuit issued an en banc decision in Aqua Products Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017), which addressed the burden of proof that the Patent Trial and Appeal Board applies when considering the patentability of substitute claims presented in a motion to amend. In its decision, the court reversed a long-standing practice requiring that patent owners in an inter partes review proceeding prove that proposed substitute claims are patentable. Instead, the court found that patent owners initially carry only a burden of production to satisfy the requirements of 35 U.S.C. § 316(d). By contrast, petitioners carry the burden of persuasion to establish that amended claims are unpatentable....
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