Cuozzo Debate Moves Forward

Over the past week or so, the Petitioner’s opening brief and supporting amicus filings have been submitted to the Supreme Court in Cuozzo Speed v. Lee. (Filings linked below). Cuozzo once again tries to draw a distinction between “adjudicative” PTAB trial proceedings and “examinational” proceedings relative to amendment options. The argument being that since the ability to amend is the basis for applying a broadest reasonable claim interpretation (BRI), and as the PTAB is more restrictive than examination based proceedings in this regard, BRI is improperly applied in PTAB trials.  

Interestingly, Cuozzo characterizes patent reexamination as an iterative amendment process akin to regular prosecution. Yet, much like the PTAB, reexamination presents one opportunity to substantively amend (before final rejection and eventual appeal)