The losing party in the first IPR decision on the merits is seeking Supreme Court review of the claim construction standard used in all subsequent decisions.

Cuozzo’s petition for certiorari challenges the practice of giving claims the “broadest reasonable interpretation” in IPRs instead of the standard applied in federal court under Phillips. Cuozzo narrowly missed obtaining a rehearing en banc on the same grounds in a 6-5 decision dividing the Federal Circuit, which could signal to the Supreme Court that this is an important issue to take up. 

The petition argues that the Federal Circuit panel erred because the broadest reasonable interpretation standard is only suitable when claims can be freely amended. It reasons that because Congress designed IPRs to be an alternative to district court litigation—with no unrestricted right to amend, Congress must have intended the federal court standard to apply. Cuozzo’s petition also prominently features the fact that petitions have an 85% success rate for invalidating at least one claim in IPR, and argues that the broadest reasonable interpretation standard is a primary reason for this rate.

For companies seeking to file an IPR, a ruling for Cuozzo would dramatically change the tactical landscape. As we have noted elsewhere, savvy filers can use the asymmetry of claim construction standards to lay the groundwork for a strong defense before the district court. 

For patent owners facing an IPR, a ruling for Cuozzo on its face would narrow the applicable prior art, although it is unclear whether such narrowing would lower the 85% IPR success rate as a matter of practice.

Due to these far-reaching implications, this is a case we will be watching with interest.