Changing the “broadest reasonable interpretation” standard of claim construction is a job for Congress, not the Federal Circuit, at least according to two opinions released by the Federal Circuit last week in In re: Cuozzo Speed Technologies, LLC, No. 2014-1301.

First, the Federal Circuit withdrew the original Cuozzo panel decision that was released on February 4, 2015, and issued a revised opinion. In the original panel decision, it endorsed the Board’s practice of construing claims in IPRs and other AIA proceedings under their broadest reasonable interpretation. The revised opinion issued on July 8 does not substantively change the holding from the earlier decision.

Second, the Federal Circuit denied Cuozzo’s petition for rehearing en banc by either a 5-5 or 6-5 vote (the votes of two judges were not disclosed). The order was accompanied by a concurring opinion authored by Judge Dyk, and joined by three other circuit judges. The concurring opinion found that there is no evidence that Congress intended the AIA to change the prevailing claim construction standard applied in post-grant proceedings. Rather, Congress prescribed rulemaking authority to the PTO to establish procedural regulations. Judge Dyk stated:

In the absence of evidence of congressional intent to abrogate the broadest reasonable interpretation standard, we should not act to adopt a different standard based on our own notions of appropriate public policy. If the standard is to be changed, that is a matter for Congress. (emphasis added)

The concurring opinion also noted that there are already three bills currently pending before Congress which would modify the broadest reasonable interpretation standard.

Chief Judge Prost authored a dissent from the en banc denial, and was joined by four other circuit judges. The dissent’s reasoning was pragmatic: it argued that the district court claim construction standard should apply because IPR is an adjudicative proceeding more similar to litigation than reexamination. The dissent also noted the limited right to amend in IPR proceedings. In the concurrence, Judge Dyk acknowledged these arguments, and essentially directed all complaints to Congress.

This decision is important in that it confirms—for now—that the claim construction applied to the thousands of currently pending AIA proceedings will not be disrupted. However, the judicial split strongly suggests that this debate is not yet over. Whether the next round will take place through Congressional modification of the standard, through the PTAB’s changes to its own rules (possibly as early as later this month), or through Supreme Court review, remains to be seen.