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New Claim Construction in IPR and PGR

Eugene Perez for World Intellectual Property Review

While the rate of filings for a postgrant review (PGR) trial has been slow, the rate of petitions filed to request an inter partes review (IPR) or a PGR specifically for a covered business method (CBM) patent trial have exceeded expectations. The rate of granting PGRs is around 70% for the fiscal year 2015, although it was higher in previous fiscal years. Once instituted, the petitioner has succeeded in cancelling patent claims in more than 70% of cases.

Many patent owners are now lobbying the US Congress to change certain procedures in IPR, PGR and CBM. One of the changes concerns the claim construction applied by the US Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB)—the broadest reasonable interpretation (BRI) standard. A narrower claim construction may be in the works because the post-grant methodology used by district courts and the PTAB differs.

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