Informative Decision Led to Confusion
Last month the Patent Trial & Appeal Board (PTAB) designated Ex Parte Jung 2016-008290, “informative.” An informative decision is one that expresses the “Board’s general consensus on recurring issues and guidance to examiners, appellants, patent owners, or petitioners in areas where parties routinely misapply the law.”
In Jung, the Board construed the claim terminology “at least one of A and B” to be conjunctive. That is, this language was determined to be properly construed (following the Federal Circuit precedent of SuperGuide Corp. v. DirecTV Enters., Inc.), as “at least one of A and at least one of B.” However, the Board also noted that a patent’s claims, specification, or prosecution history may necessitate a broader meaning. Thus, in some scenarios, “at least one of A and B” is properly construed in the disjunctive as “at least one of A or B.”
Since being designated informative, however, Jung seems to have created confusion on whether or not the PTAB was making new law.
According to today’s notice:
It has come to PTAB’s attention that the [Jung] decision has not been read as intended. For example, the designation was not intended to reflect new or changed policies with respect to claim construction. As a result, in order to avoid any confusion, the decision has been de-designated and removed from the list of informative decisions. The case remains a routine decision of the Board.