PTAB Provides Guidelines On Swearing Behind References, PTAB Litigation Blog

In IPR and CBM proceedings involving patents examined under pre-America Invents Act (AIA) rules, a patent owner may seek to disqualify a reference as prior art by demonstrating a date of invention prior to the publication date of the reference (or filing date, for a patent document). To "swear behind" a reference in this manner, the patent owner must prove (1) a conception and reduction to practice before the critical date of the reference, or (2) a conception before the critical date combined with diligence and reduction to practice after that date. See Taurus IP, LLC v. DaimlerChrysler Corp., 726 F.3d 1306, 1323 (Fed. Cir. 2013). The...