Limiting The Use Of Applicant Admitted Prior Art

Today, the USPTO issued a memorandum providing guidance on the use of Applicant Admitted Prior Art ("AAPA"). The guidance limits the use of AAPA, stating "admissions by the applicant in the specification of the challenged patent standing alone cannot be used as the basis for instituting an IPR, under either § 102 or § 103." While this seems to preclude the use of AAPA as the sole or primary reference in a ground, the guidance does not eliminate the use of AAPA. For example, the guidance notes that AAPA may be used to: (1) supply missing claim limitations that were generally known in the art; (2) support a motivation to combine; or (3) demonstrate the knowledge of the ordinarily-skilled artisan.