In Part I of this topic, I posted some of the reasons why the Patent Office has taken the position that the broadest reasonable interpretation (BRI) standard should be used in post-grant review and inter partes review. Yet another reason for use of BRI (as opposed to a district court construction) was provided by Director Kappos in recent testimony before the United States Senate. Besides the reasons mentioned in Director Kappos blog, he explained that certain portions of the America Invents Act relating to post-grant procedures refers to “patentability” which is associated with administrative procedures and the use of BRI (and which can be contrasted with “validity” which is associated with the courts and a Phillips-type construction).
Incidentally, Senator Franken (Minnesota) asked the question relating to the decision to apply the BRI standard in AIA post-grant proceedings. In so doing, he made sure that Director Kappos knew that Minnesota would love to be considered for the next PTO satellite office. He gave many justifications for consideration of Minnesota, but I think he may have forgotten to mention that Minnesota has a very active and relatively large patent bar that represents clients from all over the world, and the Minnesota patent community would welcome an opportunity to be considered for a satellite office.