This article does what is long overdue: it fully explores the validity of the BRI standard. The previously articulated rationales behind the BRI standard are severely lacking. Not only does the BRI standard fail to provide the advantages touted by the courts that created the standard, the standard is contrary to both the patent statutes and the concept of a unitary patent system. It allows examiners to avoid difficult claim interpretation issues; it leads to improper and uncorrectable denials of patent protection; and it is incurably ambiguous. Given that the BRI standard is severely lacking, the courts and the USPTO should abandon it and utilize a single, consistent claim interpretation methodology throughout the patent system. This Article proceeds in three parts. Part II describes the BRI standard and the traditional justifications for the standard. Part III details objections to the standard, and discusses why the commonly offered justifications do not hold up under critical analysis. Finally, Part IV uses three recent Federal Circuit cases employing the BRI standard as examples of what is wrong with the BRI standard.
37 AIPLA Q. J. 285 2009