Flo Healthcare v. Kappos: Time for the Federal Circuit to Show its Hand

Eugene T. Perez for World Intellectual Property Review

In construing claims for purposes of assessing patentability, the US Patent and Trademark Office (USPTO) patent examiner or the Patent Trial and Appeal Board (PTAB) will apply the “broadest reasonable interpretation” (BRI) standard. e America Invents Act (AIA) proceedings of inter partes review (IPR) (which replaced inter partes reexamination on September 16, 2012) and post-grant review (PGR) (available from March 16, 2013), will also involve this claim construction standard, as confirmed by former director David Kappos in a June 19, 2012 blog. In contrast, a district court will assess validity and use a higher claim construction standard, thus tending to construe claims more narrowly to preserve validity due to the clear and convincing standard per AIA 35 USC§282.

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