The PTAB recently granted a request for rehearing and modified the final written decision in WesternGeco LLC v. PGS Geophysical AS, IPR2015-00313, Paper 43 (P.T.A.B., Feb. 3, 2017).  This is an extremely rare event.

The unanimous final written decision held that four claims from PGS Geophysical’s U.S. Patent No. 6,026,059 were unpatentable, but upheld the patentability of three other claims.  Petitioner WesternGeco filed a request for rehearing, asserting that the PTAB incorrectly upheld the patentability of one claim due to an erroneous claim construction.  Specifically, WesternGeco argued the PTAB misconstrued the claim to include a temporal limitation.  Upon reconsideration, the majority agreed with WesternGeco and modified the final written decision to hold that the claim is unpatentable.

The judge who authored the original final written decision dissented from the rehearing order.  In the dissent, she argued that the specification and other claims supported the previous construction of the claim that was applied in the original final written decision.