IPR: New Evidence OK – New Theory NO, PTAB Litigation Blog

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Among the many differences from a patent litigation in a district court, the expedited nature of an inter partes review (IPR) brings with it an obligation for the petitioner to have a full-fledged legal theory of its case right from the start. Unlike a district court litigation where parties are free to develop and revise their arguments over the course of litigation and in response to newly discovered material, a petitioner in an IPR must demonstrate with particularity why the patent it challenges is unpatentable from the onset of the proceedings in the petition to institute. The Patent Trial and Appeal Board (PTAB) does not allow a petitioner to make a new argument of unpatentability midcourse in an IPR.

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