You are wrong. The standard of evidence in the USPTO is
preponderance of the
evidence (50%) and in a jury trial it is clear and
convincing evidence
(75%).
MPEP 2286 -
http://www.uspto.gov/web/offices/pac/mpep/s2286.html
The
issuance of a final Federal Court decision upholding
validity during an ex
parte reexamination also will have no binding effect on
the examination of the
reexamination. This is because the court states in
Ethicon v.Quigg, 849 F.2d
1422, 1428, 7 USPQ2d 1152, 1157 (Fed. Cir.
1988) that the Office is not bound
by a court’s holding of patent validity and
should continue the reexamination.
The court notes that district courts and
the Office use different standards of
proof in determining invalidity, and
thus, on the same evidence, could quite
correctly come to different
conclusions. Specifically, invalidity in a district
court must be shown by
“clear and convincing” evidence, whereas in the Office,
it is sufficient to
show nonpatentability by a “preponderance of evidence.”
Since the “clear
and convincing” standard is harder to satisfy than the
“preponderance”
standard, deference will ordinarily be accorded to the factual
findings of the
court where the evidence before the Office and the court is the
same. If
sufficient reasons are present, claims held valid by the court may be
rejected in reexamination.[ Reply to This | Parent | # ]
|