Sufficient grounds. Post-grant re- view shall not be instituted for a ground of unpatentability unless the Board decides that the petition sup- porting the ground would, if unrebutted, demonstrate that it is more likely than not that at least one of the claims challenged in the petition is unpatentable. The Board’s decision will take into account a patent owner preliminary response where such a re- sponse is filed, including any testi- monial evidence, but a genuine issue of material fact created by such testi- monial evidence will be viewed in the light most favorable to the petitioner solely for purposes of deciding whether to institute a post-grant review. A pe- titioner may seek leave to file a reply to the preliminary response in accord- ance with §§ 42.23 and 42.24(c). Any such request must make a showing of good cause.
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