The case of Trans Ova Genetics, LC v. XY, LLC, No. 2019-2312 (Fed. Cir. Sept. 8, 2020) Rule 36 affirmance of IPR2018-00250 demonstrates that the Federal Circuit, in a close case, can use the burden of proof to decide which parties loses. In this case, the loser was Trans Ova, who brought an IPR against XY, but never took steps to find out exactly what Green actually did. That was critical to the case of whether a prior art article was "of another." By not finding out, Trans Ova could not carry its burden of proof and lost.
For more detailed analysis of this case, please see on Finnegan's AIA Blog.
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