PTAB Must Provide Notice Of Sua Sponte Rejections Of Substitute Claims, PTAB Litigation Blog

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In its April 9, 2020 decision in Nike Inc. v. Adidas AG, No. 19-1262, the Court of Appeals for the Federal Circuit made clear that the Board cannot reject substitute claims based on a sua sponte invalidity contention without first providing notice and an opportunity for the patentee to respond. The Administrative Procedure Act, which applies to the USPTO, and thus the Board, like any other agency, requires no less.

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