PublishedJuly 9, 2018

CCIA Submits Comments On Proposed Change To IPR Claim Construction Standard

Today, the Computer & Communications Industry Association submitted its comments opposing the Patent Office’s proposal to change the claim construction standard applied in AIA trials from the current broadest reasonable interpretation (BRI) to the Phillips standard district courts apply.

In brief, there are three main concerns:

  1. A change from BRI to Phillips is unjustified by the historical evidence.  This is particularly true in light of the major changes to AIA proceedings caused by the Aqua Products and SAS decisions and in light of the PTO’s expressed desire to review amendment procedure in AIA trials.
  2. A change would also fail to achieve the expressed goal of increasing consistency between the district courts and the PTAB while creating new risks of inconsistency within the PTO and within the PTAB itself.

  3. The use of the Phillips standard appears to run counter to both the text and the intention of the America Invents Act.

While CCIA opposes the proposed change, in the event the change is adopted, CCIA proposes certain modifications to the rule to mitigate the procedural risks the rule would create.

The filed comments explain CCIA’s concerns in significantly more detail.

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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