Big Changes Come To Post-Grant Trials: Claim Construction Standards And SAS - August 15, 2018

Two recent events will drive big changes in ongoing and future post-grant trials, including in inter partes review, post-grant review and covered business method review proceedings.

The Patent Trial and Appeal Board recently indicated plans to make a significant change in the claim construction standard it employs, switching from the established “broadest reasonable interpretation” standard to the well-known “plain and ordinary meaning” standard. 

In addition, a recent U.S. Supreme Court case, SAS Institute Inc. v. Iancu, 138 S. Ct. 1348 (2018), significantly alters the institution phase of IPRs under the America Invents Act, ending the PTAB’s practice of permitting the partial institution of a challenge to a patent. With these changes, petitioners and patent owners alike may need to re-evaluate not only their post-grant strategy but also any co-pending or planned district court litigation and International Trade Commission investigations.