Inventor's Uncorroborated Testimony Not Sufficient To Swear Behind Reference

Attempting to "swear behind" an alleged prior art reference has been common practice in IPRs, going back to the first IPR, Garmin Int'l, Inc. v. Cuozzo Speed Tech. LLC, IPR2012-00001 (PTAB 2013), aff'd sub nom. In re Cuozzo Speed Tech., LLC, 793 F.3d 1268 (Fed. Cir. 2015), aff'd sub nom., Cuozzo Speed Tech., LLC v. Lee, 136 S. Ct. 2131 (2016). In that case, Cuozzo was unsuccessful in swearing behind (for failure to exercise reasonable diligence toward reduction to practice), and as we have discussed, patent owners are often unsuccessful in these efforts, for failure to satisfy the legal requirements for proving an earlier invention date. In the most recent of such cases, Apator Miitors APS v. Kamstrup A/S (Fed. Cir. Apr. 17, 2018), the Federal Circuit upheld a PTAB decision canceling challenged claims on the basis that the Patent Owner failed to provide sufficient corroborating evidence for the inventor's testimony that he conceived the invention before