Effective on November 13*, the PTAB is announcing a
final rule, changing the standard it uses to construe
claims.
Instead of the broadest reasonable interpretation (BRI)
standard, the PTAB will begin using the Phillips standard
used by the federal courts. Phillips v. AWH Corp., 415
F.3d 1303 (Fed. Cir. 2005) (en banc). This change is not
retroactive. Rather, the new standard will apply to petitions filed
after the effective date of the new rule, expected to be issued
sometime in early November. The PTAB will continue to apply the BRI
standard to petitions filed before the effective date of the new
rule. Consequently, for clients interested in initiating an IPR,
PGR, or CBM using the BRI standard, the petition should be filed
within the next month.
