American Intellectual Property Law Association Quarterly Journal, Vol. 37, No. 3, 2009
35 Pages Posted: 16 Jul 2009 Last revised: 17 Dec 2009
Date Written: July 16, 2009
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: 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