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Archive for October 24th, 2012

CAFC Contemplates De Novo Review of USPTO Claim Constructions

Posted On: Oct. 24, 2012   By: Scott A. McKeown

InconsistencyCourt Troubled by Own Inconsistent Precedent

As explained very recently by Director Kappos, the USPTO has a well established practice of applying a broadest reasonable claim interpretation (BRI) in proceedings before the USPTO. For this reason, Director Kappos explained that although the AIA was silent on the type of claim analysis to be applied in the new post grant proceedings of the Patent Trial & Appeal Board (PTAB), BRI was deemed necessary for, inter alia, administrative consistency.

Yesterday, in Flo Healthcare Solutions, LLC. v. Kappos, the CAFC advanced a similar consistency theory in questioning whether or not USPTO claim constructions should be reviewed under a de novo standard, as is the court’s routine practice. Or, whether the USPTO’s constructions should be entitled to a different, “reasonableness” analysis as enunciated in some of the court’s more recent precedent. (decision here) Read the rest of this entry »