Are There Really Two Sides of the Claim Construction Coin? The Application of the Broadest Reasonable Interpretation at the PTAB

The USPTO has applied the broadest reasonable interpretation (BRI) claim construction standard during prosecution, reexamination, and other office proceedings for decades. The Supreme Court affirmed in Cuozzo Speed Technologies Inc. that BRI is also the appropriate standard for unexpired claims in post-grant proceedings at the Patent Trial and Appeal Board (PTAB). Leading up to Cuozzo, many parties speculated that the PTAB’s application of BRI might create confusion and result in inconsistent outcomes at the district court level. Notably, nothing in the America Invents Act establishes a standard of deference between PTAB and district court decisions. But so far, there has been minimal confusion. This Article explores the application of the BRI at the PTAB level and evaluates if there really is any difference in applying the BRI standard compared with the Phillips standard. This Article also discusses whether other distinctions, such as different evidentiary standards, or just plain different evidence being presented, had a greater effect than claim construction standards in the few cases where a district court and the PTAB have construed the same claim language differently. The Supreme Court recently affirmed the constitutionality of postgrant proceedings at the PTAB in Oil States Energy Services, LLC. v. Greene’s Energy Group, LLC. However, questions of “takings,” “retroactive application,” and “due process” remain on the judicial horizon