The differing claim interpretation methodsThe USPTO uses a claim interpretation standard known as the “Broadest Reasonable Interpretation” during administrative trials. This method, while similar to that used at District Courts is notably more expansive – meaning it has the ability to infuse additional ambiguity into claim language and the potential to invalidate more patents than the “ordinary meaning” standard used by the District Court.

Property rights are affected by the negative implication of the USPTO’s usage of the BRI standard. The co-existence of two different interpretive standards has lead and will continue lead to forum shopping because one venue is patent owner friendly while the other venue is friendlier to the patent opposition camp. The flip flopped approach should make anyone pause in concerned reflection and consider the following questions:

  1. Should an administrative agency be allowed to use a different interpretive standard than that which is mandated at a Federal Court?
  2. If so, will it create one-sided outcomes further compounding existing forum shopping?
  3. When a patent is issued is it fair to say that it has created reliance interests?

When a patent issues it becomes a full-blown property right. Many would argue that it makes complete sense for the organization that granted that right to oversee any unforeseen required corrections. However, once a patent has issued others would argue that it has left, or at least partially left, the jurisdiction of the agency that created it. Many would argue that issued patents create reliance interests that deserve deference they are not currently afforded at the USPTO. After all deference to reliance interests is the very reason that a “patent is presumed valid” by an Article III court. Again, it is for that very reason that Congress clearly stated that a patent is “presumed valid” in 35 U.S.C. § 282.

Congress intended for the USPTO’s Patent Trial and Appeals Board to provide parallel routes for District Court litigation concerning patent validity in order to ease judicial burden and have patent validity matters overseen by persons of technical expertise. One cannot help but question the underlying rationale of the USPTO’s usage of the BRI standard because the BRI standard, when used in relation to issued patents, is facially at odds with congressional intent that a patent be “presumed valid.” Many are left wondering how an alternate standard of review can be held to be simultaneously “parallel” by any normative understanding.