On June 14, 2016, the Federal Circuit stated that parties must expect the introduction of new evidence after the PTAB’s institution decision for an inter partes review. Genzyme Therapeutic Prods. Ltd. Partnership v. Biomarin Pharm. Inc. (Fed. Cir. June 14, 2016). The patent owner’s response and petitioner’s reply both follow the institution decision, and either brief may introduce new evidence. If new evidence is introduced in the petitioner’s reply, patent owners may file a motion to exclude or for leave to respond in a surreply. Otherwise, the PTAB is free to consider and cite new evidence introduced after its institution decision.
