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The Unreasonableness of the Patent Office's 'Broadest Reasonable Interpretation' Standard

American Intellectual Property Law Association Quarterly Journal, Vol. 37, No. 3, 2009

35 Pages Posted: 16 Jul 2009 Last revised: 17 Dec 2009

Dawn-Marie Bey

Bey & Cotropia PLLC

Christopher Anthony Cotropia

University of Richmond School of Law

Date Written: July 16, 2009

Abstract

Although there has been much commentary on patent claim interpretation methodology in general, very little has been written about the unique interpretation approach the Patent Office employs. The courts, starting with the Court of Customs and Patent Appeals and continuing with the Federal Circuit, instruct the Patent Office to give every applied-for claim its 'broadest reasonable interpretation' (BRI) during patent examination. This Article explores this special standard and concludes that not only are the previously articulated rationales behind the BRI standard severely lacking, the standard is also contrary to both the patent statutes and the concept of a unitary patent system. The BRI standard additionally allows patent examiners to avoid difficult claim interpretation issues, leads to improper and uncorrectable denials of patent protection, and is incurably ambiguous.

Keywords: patent, PTO, USPTO, patent office, claim interpretation, claim construction

Suggested Citation

Bey, Dawn-Marie and Cotropia, Christopher Anthony, The Unreasonableness of the Patent Office's 'Broadest Reasonable Interpretation' Standard (July 16, 2009). American Intellectual Property Law Association Quarterly Journal, Vol. 37, No. 3, 2009. Available at SSRN: https://ssrn.com/abstract=1434918

Dawn-Marie Bey

Bey & Cotropia PLLC ( email )

213 Bayly Court
Richmond, VA 23229
United States

HOME PAGE: http://beycotropia.com/

Christopher Cotropia (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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