Experimental evidence can be a powerful tool in succeeding in an inter partes review proceeding, particularly in the case where inherent properties of prior art are at issue. As indicated by the requirements of 37 C.F.R. § 42.65(b), the Patent Trial and Appeal Board evaluates such experimental evidence and the methodology by which it was obtained. Since the inception of the IPR process, the Board has addressed the submission of experimental evidence only a handful of times.

Previously published in Bloomberg BNA’s Patent, Trademark & Copyright Journal, 91 PTCJ 191 - November 20, 2015.