In his first action in his short tenure related to the PTAB, USPTO Director Andrei Iancu on May 3, 2018 signed a Notice of Proposed Rulemaking (NPRM) set to officially publish in the Federal Register on Wednesday, May 9, 2018. The NPRM announced a new standard proposal to use the Phillips claim construction standard applied in Article III courts and ITC proceedings, as urged by PTAB critics for some time. In the NPRM, the USPTO also proposes amending the rules to add consideration by the PTAB of any prior claim construction determination made in any court or other PTAB proceeding. The comment period for the NPRM will run for 60 days from the Federal Register publication.
Earlier today the USPTO announced proposed rulemaking that would change the prior policy of using the Broadest Reasonable Interpretation (BRI) standard for construing unexpired and proposed amended patent claims in PTAB proceedings under the America Invents Act and instead would use the Phillips claim construction standard.