This week, the United States Patent and Trademark Office (USPTO) issued final rules changing the standard used for claim construction in AIA proceedings, including inter partes reviews (IPR), post-grant reviews (PGR) and covered business method patents (CBM), brought before the Patent Trial and Appeal Board (PTAB). The standard is now changed from the “broadest reasonable interpretation” standard used in patent prosecution at the USPTO to the Phillips standard used in patent litigation in federal district courts. In addition, the PTAB will also take into consideration any claim construction that has already been determined by a federal court or the International Trade Commission. These changes will be effective for any AIA proceeding filed on or after November 13, 2018.
This change brings a more uniform approach to the interpretation of patent claim terms between the different avenues for challenging the validity of a patent. It could therefore lead to more consistency in patent validity rulings and perhaps fewer invalidations. However, the standard of proof for patent invalidation remains unchanged and disparate between AIA proceedings and litigation in court, so inconsistent rulings are still possible. But a common standard for claim interpretation lessens some of the uncertainty.
This post was written by Jessica Hauth.