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Original air date:  12/13/17. Ethics Issues in PTAB Proceedings

AIA trial proceedings present heightened risks for practitioners unaccustomed to participating in a live, patent prosecution history. Unlike traditional court-based trial proceedings, the PTAB layers on additional ethical requirements and duties of candor for practitioners. Counsel for patent owners that successfully navigate an AIA trial proceeding are particularly vulnerable in this regard. Winning at the PTAB may result in such practitioners being thrust into an inequitable conduct phase of a later district court suit. This panel will provide an overview of the ethical obligations of parties and counsel, including the duties of candor and good faith, as well as the PTAB’s still-evolving disclosure obligations. The panel will also examine recent developments, the role of the Office of Enrollment & Discipline (OED) and recent cases assessing allegations of misconduct and considering the imposition of sanctions.