Patents fuel innovation and are becoming an ever-more important form of protection in this technological age. Society also has a vested interest in only valid patents being issued and enforced. Patents are presumed valid once they are issued and also currently enjoy the application of a heavy burden of proof—clear and convincing evidence—to overcome that presumption when their validity is questioned at trial. This burden has started to be questioned as the U.S. Patent and Trademark Office becomes more taxed by the increasing influx of patent applications. Current precedent conflicts with past precedent and with general principles of administrative law. This Note argues that the application of a clear and convincing burden of proof should be revisited and ultimately lowered to a preponderance of the evidence standard in order to only enforce valid patents.
Lightening the Load: Whether the Burden of Proof for Overcoming a Patent's Presumption of Validity Should Be Lowered,
78 Fordham L. Rev. 2615
Available at: http://ir.lawnet.fordham.edu/flr/vol78/iss5/14