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New USPTO Rules for Post-Grant Trials

By Kean J. DeCarlo

New changes to rules for post-grant administrative trials before the Patent Trial and Appeal Board (PTAB) went into effect on May 2, 2016, after much public comment and gnashing of teeth. Among the plethora of rule changes that were announced, two in particular stand out as most substantive for both patent owners and their challengers.

The first rule change is intended to address concerns that patent owners were at a disadvantage in responding to patent challenges, particularly during the pre-institution stage of a PTAB proceeding. The second confirms the use of the broadest reasonable interpretation (BRI) standard in post-grant proceedings and introduces an exception to the BRI standard for expiring patents.

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