Today, the PTO announced proposed rulemaking to change the claim construction standard applied by the PTAB in IPR, PGR, and CBM proceedings. In particular, the PTO proposes replacing the broadest reasonable interpretation standard for construing unexpired patent claims with the standard applied in federal district courts and ITC proceedings as articulated in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc).
The PTO also proposes amending the current rules to state that the PTAB will consider any prior claim construction determination concerning a term of the involved claim in a civil action or ITC proceeding where that claim construction determination has been timely made of record in an IPR, PGR, or CBM proceeding.
The notice of proposed rulemaking will be published tomorrow, May 9. Comments can be emailed to PTABNPR2018@uspto.gov or to the Federal eRulemaking Portal at http://www.regulations.gov/ and should be submitted within 60 days from the date of publication of the notice.