For the last three years, America Invents Act (AIA) trials before the Patent Trial and Appeal Board (Board) have been effective tools for challenging the validity of issued patents. During that time, controversy has surrounded the Board's use of the "broadest reasonable interpretation" (BRI) claim construction standard as opposed to the narrower Phillips construction standard used in district courts. In theory, the Board's broader claim construction standard makes it easier to find claims unpatentable, and critics cite the BRI standard as one factor in the Board's high invalidation rate. Others believe this controversy is much ado about nothing because most cases will not turn on which standard applies.
One area often overlooked in this debate is the construction of means-plus-function terms. Although the Federal Circuit has not addressed this issue in the context of an AIA trial, based on that court's precedent in other Patent Office proceedings, it appears that means-plus-function terms are to be given the same construction whether they are construed by the Patent Office or a district court. While the BRI versus Phillips debate likely will rage on, it should have little to no effect on the construction of means-plus-function terms. In this article, Finnegan attorneys Jason E. Stach and James D. Stein discuss the BRI standard as it applies to means-plus-function claim terms in AIA trials.
Previously published by IP Litigator
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