New Claim Construction Standard Arrives At PTAB

By Matt Kamps, Dan Schwartz and Craig Leavell (November 9, 2018, 4:33 PM EST) -- We told you it was coming! On Oct. 11, 2018, the U.S. Patent and Trademark Office issued its final rule changing the claim construction standard applied in America Invents Act post-grant proceedings at the Patent Trial and Appeal Board.[1] Effective Nov. 13, 2018, the PTAB will (1) replace its presently applied broadest reasonable interpretation claim construction standard with the "ordinary and customary meaning" claim construction standard applied by both district courts[2] and the U.S. International Trade Commission;[3] and (2) require that "[a]ny prior claim construction determination concerning a term of the claim in a civil action, or a proceeding before the [ITC], that is timely made of record in an [inter partes review, post-grant review or covered business method] IPR, PGR, or CBM proceeding [] be considered."[4] The final rule will be apply to all AIA post-grant proceeding petitions filed on or after Nov. 13, 2018.[5]...

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