PTAB: Practice & Procedure Unchanged After Aqua Products

No Duty to Discuss Closest Prior Art...But you Probably Should Anyway

In implementing the Federal Circuit's In Re Aqua Products' holding, the Patent Trial & Appeal Board (PTAB) explains that "practice and procedure before the Board will not change." And that, "[t]he Board will continue its current briefing practice as to the types, timing, and page limits of briefs."

As pointed out previously, removing the burden from the Patent Owner Motion to Amend will aid the PTAB in granting far more motions, but ultimately, amendments are not expected to be any more attractive, or common.

While the Board explained that the burden will no longer be placed on Patent Owner's, an important caveat is that the Duty of Candor still applies. In other words, while a Patent Owner is no longer required to discuss the closest prior art known under Idle Free, it maybe a best practice to do so anyway.