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« PTAB Life Sciences Report -- Part II | Main | PTAB Life Sciences Report -- Part III »

March 15, 2017


"It seems curious, however, that such a fundamental principle regarding the implication of the patent grant -- that a patent is statutorily entitled to the presumption -- should be kept from the fact-finder. These are strange days indeed."

Hey Kevin,

OMG-what you say is an understatement of how far "down the rabbit hole" patent law has now gone. How Bryson (or the Federal Circuit) can view failure to instruct the jury on a fundamental issue like the presumption of validity as anything but a serious error is just mind-boggling.

No one thought to conflate the two? How about "a patent is presumed to be valid, and because of that you may not find a patent to be invalid unless your finding is supported by clear and convincing evidence" or something like that.

35 USC 282(a)In General.โ€”
A patent shall be presumed valid. Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim. The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.

Unless a defense is available under 35 USC 282 (b) & (c)

Whats next? We don't presume people innocent in criminal court because it might confuse the jury?

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