WIPR survey: Readers say BRI and Phillips standards should be harmonised
WIPR readers unanimously believe that US courts and the Patent Trial and Appeal Board (PTAB) should use the same claim construction standard when assessing patent validity claims.
Last week, WIPR reported that US Supreme Court justices were “clearly bothered” by the fact that courts and the PTAB reach different results depending on the standard used.
The PTAB construes patents under the broadest reasonable interpretation (BRI) standard whereas district courts use the Phillips standard.
The Supreme Court justices were hearing oral arguments in Cuozzo Speed Technologies v Lee, a case that centres on the claim construction standard during the inter partes review (IPR) process.
The dispute started in 2012 after Cuozzo’s rival Garmin challenged the validity of Cuozzo’s patent, US number 6,778,074, which covers technology used in a speedometer, by requesting an IPR at the PTAB.
After construing the claims asserted in the patent under its BRI standard, the PTAB invalidated it in 2013 on the grounds that it was obvious. But Cuozzo argued that its patent would have been held valid under the Phillips standard.
Cuozzo then petitioned the US Supreme Court, after the US Court of Appeals for the Federal Circuit rejected Cuozzo’s challenge against the ruling.
After we asked our readers whether the BRI and Phillips standards should be harmonised, 100% of readers agreed that they should.
One reader said there should be a standard construction.
Another said: “A patent claim should only ever have one meaning. Claims having different meanings depending on who is construing the claim is absurd, as are jury trials for patent infringement.”
Another asked: “What is the use of a patent owner having a patent that the USPTO knows will vanish as soon as it comes to litigation?”
They added: “I understand why they use different standards, but I assert that it does nobody any good to give a patent that won't hold under litigation.”
For this week’s survey we ask: “Last week we reported that the CJEU ruled that the EU’s tobacco directive was valid. Under the directive, 65% of a cigarette pack will be covered with a health warning. Would 50% be an acceptable level of coverage?”
