In July, the U.S. Court of Appeals for the Federal Circuit rejected Cuozzo Speed Technologies’ appeal.  Cuozzo was attempting to prove that the claim interpretation used by the Patent Trial and Appeal Board (PTAB) was incorrect.  Currently, the PTAB uses the “broadest reasonable interpretation” to determine if inter partes review (IPR) proceedings are warranted; rather than the “plain and ordinary meaning” standard which federal district courts are constrained to use in litigation.  Furthermore, Cuozzo also sought to garner a ruling saying that if the PTAB exceeds its authority in instituting IPR proceedings, the decision would be judicially reviewable.

In a 6-5 split, the Federal Circuit ruled against Cuozzo on both matters.  The Federal Circuit also denied petitioner Cuozzo’s request for rehearing en banc, despite a sharp dissent from Judge Pauline Newman.  Without other recourse, Cuozzo has now filed a petition for certiorari with the Supreme Court in a hope to declare that the Federal Circuit erred on both points.  Cuozzo’s main thrust lies on the legislative intent behind the inclusion of IPR proceedings in the America Invents Act (AIA).  In enacting the AIA, Cuozzo argues that IPR proceedings were intended as a surrogate for litigation.  As such, the argument goes, the IPR claim interpretation should be identical to that used by federal courts in litigation.  Judge Newman seems to adopt the position in her dissent saying that, “[t]he panel majority thwarts the statutory plan in several ways.”  In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1284 (Fed. Cir. 2015) (Newman, P. dissenting).

In addition, several amici curiae briefs have been filed in support of Cuozzo from such companies as 3M, Sanofi Pasteur, and Johnson & Johnson.  The briefs focus Cuozzo’s first argument of claim construction, arguing against the application of “broadest reasonable intention.”  On policy grounds, the briefs point to the fact that Congress intended IPRs as an alternative to litigation and should, therefore, follow the courts in “plain and ordinary meaning.”  Because the PTAB is undermining Congress’ intent, the briefs secondarily argue that the PTO should not be given the normal administrative law deference normally granted to executive agencies.  Finally, the briefs make the argument that the broader standard is contrary to the presumption of validity that attaches to every issued patent.  As the amici curiae have been submitted, December 9 is the deadline for the government to file its responsive brief.

Cuozzo’s position, the amici curiae, and Judge Newman’s dissent lay some interesting groundwork if SCOTUS decides to take up the case.  In any case, the answer to these question will have a profound impact on what the IPR process looks like going forward.