On July 9, 2018 the BPLA submitted a comment to the USPTO in response to its Notice of Proposed Rulemaking to change the claim construction standard used in certain post-grant proceedings before the Patent Trial and Appeal Board (“PTAB”).  The BPLA comment did not oppose the proposed change, and expressed its support for the USPTO’s stated goals of promoting consistency between those proceedings, federal district court litigation, and proceedings at the International Trade Commission, as well as increasing judicial efficiency overall.  The comment also suggested that the USPTO give additional consideration to promulgating rules governing the timing, effective date, and applicability of the proposed rule, and suggested that additional guidelines for considering prior claim construction determinations would aid the PTAB in improving consistency and predictability.  Lastly, the BPLA emphasized that the PTAB should not be permitted to construe claim terms that are relevant to grounds that could not be raised in PTAB proceedings.

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