B&B Hardware Emphasizes Risks of Patentee Legislative Initiatives
A week back the U.S. Supreme Court decided B&B Hardware, Inc. v. Hargis Indus., Inc., No. 13-352, slip op., 575 U.S. __ (2015). In B&B, the Court held that a decision of the Trademark Trial and Appeal Board (TTAB) can have preclusive effect in subsequent district court proceedings (if the requirements of issue preclusion are otherwise met). That is, the Court determined that the action of an administrative agency can preclude later litigation of the “same issue” in a district court.
At present, the claim construction analysis employed by the Patent Trial & Appeal Board (PTAB), broadest reasonable interpretation (BRI), is considered different than the Philips construction employed by the district courts. For this reason, a claim construction ruling of the agency is not binding in a subsequent litigation pursuant to B&B. Yet, patentees urge that the use of what they consider to be an unfairly broad read of their claims (BRI) at the PTAB leads to improper cancellation of their patents. As I have pointed out previously this is a misguided belief. Different interpretations of a same patent claim term can be found, yet, in my view a proper determination is rarely different under either standard. Nevertheless, to cure this perceived inequity, patentees have consistently urged the PTAB to adopt the Philips analysis of the district courts for AIA trial proceedings.
Seems the plot thickens almost daily.