Intellectual Property Client Alert: Federal Circuit Panel Majority Calls for En Banc Review of Proper Standard of Review for Claim Construction Rulings Made by the U.S. Patent and Trademark Office

    26 October 2012

    On Tuesday, the Federal Circuit affirmed an U.S. Patent and Trademark Office (PTO) re-examination decision, upholding the rejection of certain claims of a Flo Healthcare Solutions, LLC patent. In Flo Healthcare Solutions, LLC v. Kappos, the Court held that the PTO erred in construing claim terms under 35 U.S.C. §112, ¶6, but the Court agreed with the ultimate decision of the Patent Trial and Appeal Board (formerly the Board of Patent Appeals and Interferences) on claim construction. In applying the claim construction to the prior art cited in the re-examination, the Court reviewed the PTO’s legal conclusions without deference.