Tuesday, February 10, 2015

The re-submitted Goodlatte bill and Judge Newman in Cuozzo

Relevant to the February 6 post on IPBiz titled


Judge Newman in Cuozzo was correct on Congressional intent on claim construction standard


The PatentDocs blog has some related commentary on February 9:


Section 9 of the bill turns to "improvements and technical corrections" to the AIA, the most significant of which contained in Section 9(b), wherein the Patent Trial and Appeal Board is required to employ in post-grant proceedings the same standards for claim construction as are used by district courts.  Enactment of these provisions would reverse the both the PTAB and the majority opinion by the Federal Circuit in In re Cuozzo Speed Technologies (and in the process vindicate Judge Newman's dissent recognizing both the intent of Congress in enacting the post-grant provisions of the AIA and the limitations on PTO rulemaking contrary to that intent).  On the other hand, Section 9(a) also strikes the estoppel provisions with regard to patent challenges that "reasonably could have been raised," opening the door for patentee harassment and multiplicity of challenges in the PTO and the courts.  These provisions will come into force immediately upon enactment of the bill into law.


There is no doubt that Judge Newman correctly perceived Congressional intent that BRI was not to be used in post-grant proceedings.  The re-submitted bill and the earlier bill were clear on this point.
[one recalls an earlier statement of Learned Hand relevant here.]

Of interest is the comment on PTO rulemaking.


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