Posts Tagged: "Phillips v. AWH Corp."

On October 30, the Senate Judiciary Committee’s Subcommittee on Intellectual Property heard from five witnesses on ways to improve patent quality at the United States Patent and Trademark Office (USPTO). The Subcommittee subsequently posed questions to the witnesses, including professors Colleen Chien, R. Polk Wagner, and Melissa Wasserman, to supplement their testimony. Those witnesses have now submitted their responses, which expand upon their various suggestions for improving patent quality.

“It seems self-evident that the same patent contested in different tribunals should have its meaning – its boundaries – determined using the same standard,” Director Iancu said when discussing the final rules implementing the Phillips standard at the PTAB… Those few who were not pleased by the change have cited a believe that the change to the Phillips standard would usher in a return to lower quality patents. With a bit of a confrontational tone, Director Iancu took issue with that, finding the argument without merit.

Congress can, and should, take at least four steps in restoring the health and vitality of our patent system: First, Congress should ensure that the patent grant is meaningful and valuable in the first instance. Second, Congress should reaffirm the exclusive nature of the patent grant. Third, Congress should clarify, and perhaps legislatively overrule, the cases addressing patent eligible subject matter, Alice, Mayo, and Myriad. Fourth, and finally, Congress should tread extremely carefully in the realm of so-called patent litigation reform.

It seems difficult to reconcile the Respondent’s principal argument that two standards should still apply: that is, that the PTAB should be permitted to continue applying its policy-derived broad BRI standard for construing patent claim scope in Congressionally mandated “adjudicative” IPR proceedings while still using the lower preponderance of the evidence standard provided under 35 U.S.C. § 316(e). The notion that the USPTO may “infer” such intent to also apply the BRI in the absence of any express guidance from Congress was weak, at best. Especially because having two such claim construction standards applied by Article III courts and the ITC on the one hand, and the USPTO’s unilateral application of an “examination” claim construction standard in an intended “adjudication” setting on the other hand, has already led to inequitable and presumably non-appealable results.

In the Introduction to the Unified Patents’ brief the following statement is made: “The phrase ‘broadest reasonable interpretation’ describes the same procedure applied in both the PTO and by the courts.” That statement is unequivocally incorrect. Federal district courts do not apply the broadest reasonable interpretation of an issued claim when performing a claim construction in patent litigation. Quite the opposite, district courts narrowly interpret claims in an attempt to find a true and correct construction of the claims. The law is unequivocally clear: district courts do not apply the broadest reasonable interpretation standard. It is so axiomatic that district courts use a different standard than does the USPTO when interpreting claims it is almost difficult to figure out where to begin to unravel this falsehood.

The Court noted that the Board failed to account for how the claims and specification inform the ordinary skilled artisan as to what ordinary definition the patentee was using. The Court noted that just because “around” has several dictionary definitions does not mean all these meanings were reasonable in light of the specification. The Court argued that all of the components of the cable connectors encircled an inner electrical conductor, and thus it would seem odd to construe “reside around” without recognizing the context of its use in terms of the cable.

The broadest reasonable interpretation standard is frequently referred to simply as BRI within the industry. The Patent Office applies the broadest reasonable interpretation in virtually all circumstances. Whether the Patent Trial and Appeal Board (PTAB) should be using the broadest reasonable interpretation when it reconsiders previously issued patents in post grant proceedings will soon be considered by the United States Supreme Court. Notwithstanding, the focus of this article is not specifically to evaluate the merits of the Cuozzo appeal, but rather to generally discuss the broadest reasonable interpretation standard and what it means from an analytical perspective.