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Are There Really Two Sides Of The Claim Construction Coin? The Application Of The Broadest Reasonable Interpretation At The Ptab, Paula Miller, Marianne Terrot, Stacy Lewis, Tom Irving

Chicago-Kent Journal of Intellectual Property

The USPTO has applied the broadest reasonable interpretation (BRI) claim construction standard during prosecution, reexamination, and other office proceedings for decades. The Supreme Court affirmed in Cuozzo Speed Technologies Inc. that BRI is also the appropriate standard for unexpired claims in post-grant proceedings at the Patent Trial and Appeal Board (PTAB). Leading up to Cuozzo, many parties speculated that the PTAB’s application of BRI might create confusion and result in inconsistent outcomes at the district court level. Notably, nothing in the America Invents Act establishes a standard of deference between PTAB and district court decisions. But so far, there has …