Prepare For New Claim Construction Standard At PTAB

Law360 (July 16, 2018, 1:51 PM EDT) -- On May 9, 2018, the U.S. Patent and Trademark Office proposed changing the rules governing claim construction in America Invents Act post-grant proceedings before the Patent Trial and Appeal Board.[1] Specifically, the USPTO proposed (1) replacing the broadest reasonable interpretation claim construction standard with the “ordinary and customary meaning”[2] claim construction standard applied by district courts and the U.S. International Trade Commission;[3] and (2) requiring the PTAB to “consider any prior claim construction determination” by a district court or the ITC that is “timely made of record” in an AIA post-grant proceeding.[4]

As drafted, the proposed rule would apply to all...

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