On January 15, the U.S. Supreme Court granted certiorari in Cuozzo Speed v. Lee, which marks the first time the Court will review a decision from the Patent Trial and Appeal Board (PTAB) in an America Invents Act (AIA) proceeding. The petition for certiorari presented two questions:
- Whether the [Federal Circuit] erred in holding that, in IPR proceedings, the Board may construe claims in an issued patent according to their broadest reasonable interpretation rather than their plain and ordinary meaning.
- Whether the [Federal Circuit] erred in holding that, even if the Board exceeds its statutory authority in instituting an IPR proceeding, the Board’s decision whether to institute an IPR proceeding is judicially unreviewable.
Last year a Federal Circuit panel determined that there was implicit congressional authorization of the broadest reasonable interpretation standard in the AIA and, regardless, “the standard was properly adopted by PTO regulation.” The panel also held that it lacked jurisdiction to review the PTO’s decision to institute the IPR, concluding that 35 U.S.C. § 314(d) “prohibits review of the decision to institute IPR even after a final decision.” Judge Newman dissented on both issues and argued, among other things, that use of the broadest reasonable interpretation standard “distorts, indeed defeats, the [AIA] legislative purpose of providing an administrative surrogate for district court determination of patent validity.” In a split 6-5 decision, the full Federal Circuit also denied Cuozzo’s petition for en banc rehearing.