Introduction
With the adoption of the America Invents Act (AIA) in 2011 and the accompanying change from a first-to-invent system to a first-to-file system, one might be tempted to conclude that first-to-invent concepts like prior conception and reasonable diligence are no longer relevant.
Swearing Behind: Overcoming Asserted Prior Art in PTAB Proceedings
Part One of a Two-Part ArticleThis two-part article discusses the various legal and evidentiary requirements for antedating and removing prior art that patent owners should consider when their pre-AIA patents are challenged based on a prior art publication or activity that is not otherwise subject to a statutory bar. It also addresses considerations for petitioners to consider when developing their initial and ongoing invalidity strategies. Part One leads off with a discussion of the evidentiary requirements for proving earlier invention, conception and diligence and actual reduction in practice.
By
Emily J. Roberts, Ph.D. and Adam R. Brausa
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