PTAB: Inadvertent Mistake In Analysis Of Experimental Data That Substantially Impacts Proceeding Cannot Be Corrected

The PTAB recently denied a motion to correct clerical mistakes under 37 C.F.R. § 42.104(c) because the corrections presented substantive new evidence that would have had a substantial impact on the proceedings and prejudiced the patent owner.

Petitioner Sweegen, Inc. filed a petition for post grant review (PGR) of a patent covering a method of making a certain chemical compound. Petitioner argued that the claims were anticipated by an example in a prior art reference. To support its anticipation argument, Petitioner commissioned a bioanalytical chemistry laboratory to replicate that example. Based on the testing results, Petitioner submitted two declarations and argued that performing the example in that reference would have necessarily produced a certain product. Almost a month after Petitioner filed the exhibits, one of the laboratory's employees discovered that the test results "inadvertently linked the tables to the incorrect data cells." The correct results