2019 Patent Trial and Appeal Board Key Practice Updates: A Year in Review -
2019 has been an active year for procedural changes in the Patent Trial and Appeal Board (“PTAB”). These changes include not only the PTAB’s issuance of a Trial Practice Guide July 2019 Update, but also a number of clarifications/interpretations of procedures that the PTAB adopted in 2018 that have modified PTAB practice going forward. We explore a few key updates below.
The Ongoing Importance of Claim Construction -
In late 2018, the PTAB did away with the broadest reasonable interpretation standard and finally adopted the litigation claim construction standard from Phillips v. AWH Corp. In spite of the industry attention that this received, there is reason for skepticism as to whether this is really a meaningful distinction. Although some decisions have clearly turned on which standard applies, some have suggested the change is likely to have little effect on validity determinations. Either way, the PTAB’s application of the Phillips standard is clear evidence of its efforts to promote greater predictability and uniformity of its opinions with U.S. courts.
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