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ARTICLE · 24 AUGUST 2020

Admitted Art Ruled Out As IPR Trial Ground Reference

Ropes & Gray LLP
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Earlier this week, a guidance memo was issued to the Patent Trial & Appeal Board (PTAB) on the use of Applicant Admitted Prior Art (AAPA) in IPR proceedings.

United StatesIntellectual Property
Scott A. McKeown
Scott A. McKeown
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Agency Memorandum Clears Up Long Standing PTAB Debate...For Now

Earlier this week, a guidance memo was issued to the Patent Trial & Appeal Board (PTAB) on the use of Applicant Admitted Prior Art (AAPA) in IPR proceedings. Much like the agency's earlier 101 Guidelines on Patent Subject Matter Eligibility, the AAPA Guidance is more a pronouncement of the agency's independent view of the law as opposed to more traditional implementation guidance on regulatory practices or new CAFC/SCOTUS jurisprudence. As we know from the Federal Circuit's feedback on the 101 Guidelines, such independent pronouncements are given little weight outside the agency.

Nevertheless, it is at least helpful to practitioners to have a definitive answer on this issue given the years of PTAB panel variability. But, this guidance seems a bit short-sighted to my eye.

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