By
Sarah Fendrick --
In a notice published in the Federal Register (75 Fed. Reg. 19558),
the U.S. Patent and Trademark Office cancelled Rule 41.200(b) as a result of the decision
rendered in Agilent
Technologies, Inc. v. Affymetrix,
Inc., 567 F.3d 1366 (Fed. Cir. 2009). 37 C.F.R. § 41.200(b) (2004) provides: ''A
claim shall be given its broadest reasonable construction in light of the
specification of the application or patent in which it appears.'' The Federal Circuit in Agilent found that 37 C.F.R. § 41.200(b) did
not apply in an interference proceeding where one party challenges another's
written description.
The
Court held: ''[W]hen a party
challenges written description support for an interference count or the copied
claim in an interference, the originating disclosure provides the meaning of
the pertinent claim language.'' Agilent,
567 F.3d at 1375. Alternatively under the Court's ruling in Agilent, when a party challenges validity under 35 U.S.C. § 102 or § 103,
the claim must be interpreted in light of the specification in which it
appears.
To conform to the Federal Circuit ruling, the USPTO has cancelled Rule
41.200(b).
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