Insider’s Guide to Proving Your Patent Has Been Infringed


But now, what, what level? Do you have to prove, yeah, this is absolutely not valid, or hey, there’s a good chance this might be invalid, or do you just, what’s the level of proof that you have to come in with?

In order to institute the IPR after the petition, I, hey, I would like to challenge the validity. It’s just more likely than not. That the challenging party would prevail on at least one of the claims that are being challenged.

So that’s like, 51/49? That’s more likely than not.

Yes, around there. 50.001%.

Okay, cute. Now, uh, so when there’s another level, a higher level, that is at the federal district court to call a patent invalid, the challenging party has to show that the patent is invalid by clear and convincing evidence. Let’s put a number on that. That that’s by 80 percent sure. It’s not quite beyond a reasonable doubt. That is the super highest, that’s in criminal law.

Yeah, but something, just to, to clarify the more, more likely than not is just to institute the actual proceeding of the IPR in order to actually invalidate the patent. I believe it’s preponderance of the evidence is the standard.