The U.S. Court of Appeals for the Federal Circuit granted Aqua Products, Inc.'s petition for rehearing en bane on the issue of whether the patent owner bears the burden of persuasion of patentability when amending claims during inter partes review (IPR). The en banc opinion includes five opinions totaling 148 pages. The differing views of the judges led to a narrowly tailored ruling. The en bane panel reversed the prior decision, making clear that the burden of persuasion of patentability of proposed amended claims in IPR does not rest with the patent owner. Rather, the petitioner must establish that any proposed amended claims are not patentable.
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