Proposed Rule: No More BRI In PTAB Trials

Today, the USPTO issued a press release announcing a Notice of Proposed Rulemaking for Claim Construction Standards used in PTAB Proceedings.¹ The rule proposed by the Office would change the prior policy of using the Broadest Reasonable Interpretation (BRI) standard for construing claims in trials before the PTAB. Presently, 37 C.F.R. 42.100(b), 42.200(b) and 42.300(b) require that a "claim in an unexpired patent that will not expire before a final written decision is issued shall be given its broadest reasonable construction in light of the specification of the patent in which it appears." The announcement explains that the newly proposed standard "is the same as the standard applied by Article III courts and [ITC] proceedings" following Phillips v. AWH Corp., 412 F.3d 1303 (Fed. Cir. 2005) (en banc). The Office's proposal explains "the Office intends that any proposed rule changes adopted in a final rule would be applied to all pending IPR, PGR, and CBM proceedings