Can PTAB and Courts Reach Different Decisions? Definitely So, PTAB Litigation Blog

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In a post last month we explained that the standard applied by the PTAB in post grant proceedings for determining whether claims are sufficiently definite under 35 U.S.C. §112(b) is more demanding than the standard applied by U.S. district courts.  While the courts merely require that a patent claim defines the scope of an invention with “reasonable certainty” in accordance with the Supreme Court’s decision in Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014), the PTAB requires that a patent claim is “clear” (in accordance with In re Packard, 751 F.3d 1307 (Fed. Cir. 2014)) or is not potentially “amenable to two or more plausible constructions” (in accordance with Ex Parte Miyazaki, 2008 WL 5105055 (PTAB Nov. 19, 2008)).

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