Whirlpool Effect: What if Petitioners Must Prove Proposed Amended Claims Are Unpatentable in IPRs?

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Soon, the Federal Circuit will decide whether the patent owner or the petitioner bears the burden to prove whether proposed substitute claims in an inter partes review (IPR) are patentable or unpatentable. Currently, the patent owner bears the burden to prove patentability. However, if the Federal Circuit were to change who bears the burden, there could be significant unintended consequences. This article considers some potential issues that could arise if the burden is shifted to the petitioner.

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