Today, the PTO announced that it has published a final rule changing the claim construction standard applied during IPR, PGR, and CBM proceedings before the PTAB. The final rule replaces the “broadest reasonable interpretation” standard with the claim construction standard that is used to construe claims in civil actions in federal district court. Additionally, the PTO amended “the rules to add that any prior claim construction determination concerning a term of the claim in a civil action, or a proceeding before the International Trade Commission (“ITC”), that is timely made of record in an IPR, PGR, or CBM proceeding will be considered.”
The final rule will be published in the Federal Register tomorrow, October 11, 2018, and will take effect 30 days thereafter. The rule will not be retroactively applied. Rather, the changes will apply only to IPR, PGR, and CBM petitions filed on or after the effective date of the final rule.