PTAB To Apply Phillips Starting November 13th

Final Rule Publishes Tomorrow

As predicted last week, the final rule package to switch the to the Phillips claim construction for AIA trial proceedings at the Patent Trial & Appeal Board (PTAB) will publish Thursday. (advanced copy here). The change will apply to inter partes review (IPR), post-grant review (PGR), and the transitional program for covered business method patents (CBM) proceedings before the PTAB.

The final rule replaces the "broadest reasonable interpretation" standard with the federal court claim construction standard that is used to construe a claim in a civil action under 35 U.S.C. § 282(b). This is the same claim construction standard articulated in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc), and its progeny. Additionally, under the final rule, when construing a claim term in an IPR, PGR, or CBM, the PTAB will take into consideration any prior claim construction determination that has been made in a civil action, or a