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As the sixth anniversary for implementation of inter partes reviews (“IPRs”), post-grant reviews (“PGRs”), and covered business method patent reviews (“CBMs”) under the America Invents Act approaches, the U.S. Patent and Trademark Office recently announced a possible shift in how patent claims will be interpreted in those proceedings.

On May 9, 2018, the PTO issued a notice of proposed rulemaking wherein it made three proposals: (1) “to replace the broadest reasonable interpretation (‘BRI’) standard for construing unexpired patent claims and proposed claims in these trial proceedings with a standard that is the same as the standard applied in federal district courts and International Trade Commission (‘ITC’) proceedings”; (2) “to add that the Office will consider any prior claim construction determination concerning a term of the involved claim in a civil action, or an ITC proceeding, that is timely made of record in an IPR, PGR, or CBM proceeding”; and (3) “any proposed rule changes adopted in a final rule would be applied to all pending IPR, PGR, and CBM proceedings before the PTAB.”   The Notice can be found here.

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