In Aqua Products v. Matal (Fed. Cir. Oct 4, 2017) (en banc), the court relaxed the standard for allowing the entry of amendments in post grant proceedings at the USPTO including IPRs, PGRs and CBMs. There were 5 separate opinions written by the court. In summary the court jointed in the following decision,
“The final written decision of the Board in this case is vacated insofar as it denied the patent owner’s motion to amend the patent. The matter is remanded for the Board to issue a final decision under § 318(a) assessing the patentability of the proposed substitute claims without placing the burden of persuasion on the patent owner.”
It remains to be seen how (or if) the Aqua Products decision will affect the Oil States Energy Services, LLC v. Greene’s Energy Group, LLC case pending at the US Supreme Court this term that challenges the constitutionality of AIA procedures ostensibly related in some regard to the lack of ability for a patentee to amend his or her claims during the proceeding.
