Clear and Convincing Standard illogical
Gugliuzza 18 (Paul R. Gugliuzza, Professor Paul Gugliuzza is an award-winning scholar and teacher in the fields of civil procedure, federal courts, and intellectual property law, focusing in particular on patent litigation., March 2018, “Quick Decisions in Patent Cases”, Georgetown Law Journal, https://scholarship.law.bu.edu/faculty_scholarship/258/, accessed 7-2-24//pa-nme)
Another option to facilitate preclusion between the courts and the PTO would be to have both tribunals apply the same burden of proof on the question of invalidity. Congress has two basic options on that score. First, it could require the PTAB to apply the clear and convincing evidence standard that currently applies in court. That standard, however, is a form of judicial deference to agency decision making, 216 and it makes little sense to say that a three-judge panel of the PTAB should defer to a prior decision by a single examiner. The other option would be for both the courts and the PTO to apply a preponderance of the evidence standard. If, as many believe, the PTO issues too many patents that do not actually satisfy the requirements for patentability, then the clear and convincing evidence standard improperly insulates many patents from invalidity challenges. 217 Indeed, the decision to issue a patent, made by a single examiner with limited time to allocate to the task, does not seem like the type of reasoned decision making to which court deference is typically appropriate. 218