Rearranging Trial Permissible, but not Permitted

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In Gnosis S.P.A., v. Merck & CIE, IPR2013-00117, Paper 64 (March 12, 2014), the Merck, the patent owner, tried to get the Board to allow it to give a rebuttal argument during the hearing, arguiing that it should be allowed to argue last, even if just briefly, because it bears the burden of proof as to evidence of secondary considerations of nonobviousness. While noting that the argument order may be reversed, such as when the only issue in the case is whether proposed substitute claims are patentable, the Board noted taht Petitioner still had the burden of proving invalidity, including the effect of seconday considerations, such that reordering the proceedings was not appropriate.

Topics:  Merck, Patent Infringement, Patent Litigation, Patents

Published In: Civil Procedure Updates, Intellectual Property Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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