On Friday, January 15, 2016, the Supreme Court of the United States granted certiorari in Cuozzo Speed Technologies, LLC v. Lee, No. 15-446. The petition has been closely followed since it was filed on October 6, 2015, and the briefing addresses the following issues, which have been hotly debated since the inception of AIA post-grant review:
- Whether the Court of Appeals for the Federal Circuit erred in holding that, in inter partesreview (IPR) proceedings, the Patent Trial and Appeal Board may construe claims in an issued patent according to their broadest reasonable interpretation (“BRI”) rather than their plain and ordinary meaning, as applied in federal district court; and
- 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 is judicially unreviewable.
Denied en banc rehearing by the Federal Circuit on July 8, 2015, over five dissenting judges, this case involves the first AIA issue to successfully reach the Supreme Court for consideration.
Petitioner Cuozzo argues that the Federal Circuit panel majority erred in holding that the Board may give patent claims their BRI in IPR because the BRI is an examination expedient justified by the applicant’s liberal right to amend claims, because IPR is an adjudicative proceeding with no right to amend, and because the U.S. Patent and Trademark Office’s BRI regulation is invalid. Cuozzo also argues that the majority erred in holding that the Board’s decision to institute IPR is unreviewable.
Over a dozen parties submitted amicus papers with the Court in support of Petitioner Cuozzo. The American Intellectual Property Law Association (AIPLA), for example, argues that the BRI standard effectively negates the statutory presumption of validity afforded to issued patents, that the same claim construction standard should apply for purposes of infringement and validity determination, and that the opportunity to file a motion to amend claims in a post‑grant proceeding does not support application of the BRI standard.
Under Supreme Court rules, Petitioner Cuozzo’s merits brief is due within 45 days of the grant ofcertiorari—by Feb 29, 2016. Amicus briefs supporting the Petitioner or neither party are due 7 days later, on March 7, 2016. Respondent USPTO’s merits brief will be due 30 days from the filing of the Petitioner’s brief, likely March 30, 2016, with supportive amicus briefs due 7 days later, on April 6th. While the Petitioner has a reply brief after that, the exact timing will depend on the Court’s to-be-released argument schedule.
It is possible that the Court will schedule oral argument during its final sitting of this term—April 25, 26, and 27—and render a decision by the end of June 2016. If not, argument and the Court’s decision will await the Court’s next term, opening on Monday, October 3, 2016.