Can new evidence be introduced in a 35 U.S.C. 145 action?
Yes, in an action under 35 U.S.C. 145, the plaintiff is allowed to introduce new evidence that was not previously presented to the U.S. Patent and Trademark Office (USPTO). This is one of the key advantages of pursuing a civil action under 35 U.S.C. 145 instead of a direct appeal to the Federal Circuit.
The MPEP explicitly states: “In an action under 35 U.S.C. 145, the plaintiff may introduce evidence not previously presented to the U.S. Patent and Trademark Office.“
This provision allows applicants to present new arguments, submit additional data, or introduce expert testimony that may not have been available or considered during the initial examination or appeal process at the USPTO. However, it’s important to note that introducing new evidence may also increase the complexity and cost of the proceedings.
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