Justice Dept. Brief Highlights Flaws of Cuozzo BRI Dispute

This past Wednesday the U.S. Department of Justice filed its Respondent Brief in Cuozzo Speed v. Lee. (here) Amicus filings in support of the Respondent are due to be filed by March 30th.

In its brief, the government emphasizes that limited amendment options have long been a staple of USPTO post grant proceedings such as patent interference and patent reexamination, thus, BRI is just as applicable in Inter Partes Review (IPR) as it is in these other proceedings. Also pointed out is that IPR includes many mechanisms that are different from litigation (hence it is not a surrogate) — not the least of which are the ability to amend claims and a lower evidentiary standard — an that in any event, the PTO was given rule making authority for such interstitial matters as claim construction used during IPR.

On the topic of the appeal bar, the government focuses on matters of statutory construction.

It would seem to me that the second issue (appeal bar) is the more likely candidate for modification by the Court.