PTAB May Disregard New Evidence Presented At Oral Argument

The US Court of Appeals for the Federal Circuit concluded that the Patent Trial and Appeal Board (PTAB) is not required to consider evidence presented for the first time at oral argument in an inter partes review (IPR). Dell Inc. v. Acceleron, LLC, Case No. 17-1101 (Fed. Cir., Mar. 19, 2018) (Reyna, J).

This appeal concerned a challenged claim of Acceleron's patent, which is directed to a computer network appliance that includes caddies, which provide air flow in the chassis. Dell contended that a prior art reference disclosed the claimed caddies, but Acceleron responded that the reference disclosed, at most, a single caddy, while the claim required plural caddies to be provided. At oral argument, Dell raised a novel argument equating the slides in the chassis with the claimed caddies. Acceleron objected that Dell's argument was not timely raised, but the PTAB denied Acceleron's objection. In its final written decision, the PTAB found the challenged claim