Can litigation-related materials be used in a patent protest?

Yes, litigation-related materials can be submitted as part of a protest under 37 CFR 1.291. The MPEP provides examples of such materials:

“Some representative examples of other forms of evidence are litigation-related materials such as complaints, answers, depositions, answers to interrogatories, exhibits, transcripts of hearings or trials, court orders and opinions, stipulations of the parties, etc.”

When submitting litigation-related materials, it’s important to note:

• If only a portion of the materials is relevant, protestors are encouraged to submit only the relevant part(s)
• The USPTO will evaluate each item of evidence for authenticity and probative value
• The Office recognizes that authentication and probative value may be challenging for non-conventional evidence, but this doesn’t preclude its consideration

Protestors should ensure that the submitted materials are directly relevant to the patentability issues they are raising in the protest.

To learn more:

• Patent Protest
• Litigation Materials
• Evidence
• 37 CFR 1.291
• USPTO Procedures