Fenwick & West patent partner Stuart Meyer was prominently featured in a Law360 article about the effect that the Innovation Act would have on patent litigation.
The bill, recently introduced in Congress, would end the Patent Trial and Appeal Board (PTAB) use of the “broadest reasonable interpretation” standard for claim construction in America Invents Act (AIA) reviews and align with the standard used in district court.
Meyer told Law360 that since the intent of AIA reviews was to be a cost-effective alternative to determine a patent’s validity, it makes sense for PTAB and district courts to use the same claim construction standard.
"The broadest reasonable interpretation standard leads to seemingly inconsistent results,” he said. “You could have a court and a three-member panel of the PAB – both equally intelligent and both doing a good job – come out with a different result. It seems like that has got to be wrong."
On the other hand, the Innovation Act also would revise the estoppel provision in post-grant reviews, which, Meyer said, currently bars companies from raising in district court any issue they raised in the review, “or reasonably could have raised,” frequently making companies wary of seeking such reviews. Removing the words “or reasonably could have raised” from the estoppel provision, Meyer predicted, would dramatically increase the popularity of post-grant reviews as a tool to challenge patents.
"Striking those five words would be the whole difference between people remaining uninterested in this new proceeding and becoming much more interested,” Meyer said, adding that the proposed revision would allow challengers to decide which issues to raise in the review and which to save for district court.
The full article is available through Law360’s website.