On May 8, the U.S. Patent and Trademark Office issued proposed rule changes concerning claim construction practice at the PTAB. The Patent Office proposes changing the standard for construing claims of unexpired patents in AIA trial proceedings to be the same as the standard applied in district courts and the International Trade Commission (“ITC”).

Currently, the Patent Office interprets claims of unexpired patents under the “broadest reasonable interpretation” standard and expired patents under the standard set forth in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005). The proposed rule change would require the PTAB in AIA trial proceedings to construe claims of both expired and unexpired patents under the Phillips standard.

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