The AIA-Trial claim construction issue is important and many of us would like to see the Supreme Court address it in Cuozzo. However, there is one legal matter that has been an elephant-in-the-room since the Cuozzo appeals began several years ago: Standing. As a general matter, parties do not have standing to raise issues on appeal that have no impact on the underlying dispute. Likewise, a court has no jurisdiction over issues when the parties have no standing. An important feature of standing is that it is generally non-waivable. Rather, a court must dismiss a case when one or more parties lack standing — even if (as here) neither party raise the issue. The standard theory of claim construction is that the USPTO’s “Broadest Reasonable Construction” is broader than the standard Phillips construction used by courts in infringement litigation. The theory behind this change in standard is that it allows the PTO to…
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