New USPTO Director Andrei Iancu is getting more specific in his ideas for reforming the patent system.

Speaking to the U.S. Chamber of Commerce Wednesday, Iancu said the U.S. Patent and Trademark Office is conducting a broad review of the administrative procedure for challenging patent validity at the PTO, known as inter partes review.

“We are now examining: how and when we institute proceedings, the standards we employ during the proceedings, and how we conduct the overall proceedings,” Iancu said in prepared remarks. “The goal, with whatever action we take, is to increase predictability of appropriately scoped claims.”

The comments seemed to confirm recent speculation that the claim construction standard the Patent Trial and Appeal Board (PTAB) uses in inter partes review is on the chopping block. That standard, known as broadest reasonable interpretation or BRI, has been criticized by patent owners as contributing to too many invalidations.

Patent owners want the board to use the somewhat more narrow Phillips standard employed by federal courts. The U.S. Supreme Court rejected a challenge to BRI in 2016, but made clear that the PTO has authority to adopt a different standard.

Iancu also ramped up his criticism of the Supreme Court's patent eligibility jurisprudence, a series of four decisions that culminated in 2014's Alice v. CLS Bank. The rulings have led to a lot of debate among district judges and within the U.S. Court of Appeals for the Federal Circuit as to what is an unpatentable abstract idea under Section 101 of the Patent Act.

“System-wide, a significant amount of time is being spent trying to figure out where the lines should be drawn, and what's in and what's out. And multiple people looking at the same patent claims often have trouble agreeing on, and predicting, the outcome,” Iancu said. “Something must be done.”

Iancu stressed that the PTO will respect Supreme Court teachings, but said it will look for ways to simplify the guidance it provides to its patent examiners. “The USPTO can lead, not just react to every new case the courts issue,” he said.

Finnegan, Henderson, Farabow, Garrett & Dunner partner Erika Arner said she's pleased Iancu is focusing on predictability. Lawyers, patent owners and the public benefit from settled expectations, as even the Supreme Court has noted.

Arner, the president of the PTAB Bar Association, said PTAB Chief Judge David Ruschke also has been emphasizing predictability. It's a challenge for a bench that numbers more than 100 administrative judges. The goal is not to have broad patent rights “turn on the whim of one panel or the fact-specific circumstances of one case,” she said.

She pointed out that Ruschke has organized a June 29 judicial conference where stakeholders can give feedback directly to members of the board.

Arner said Iancu's mention of “standards” could refer to BRI or to the In re Packard standard of indefiniteness used in post-grant reviews. That too is also different from the standard used in federal courts. The PTO recently withdrew as an intervenor in a case where the agency had been defending the Packard standard, saying its “actively reconsidering” its stance.

Scott Kamholz, a Covington & Burling of counsel who previously served as a PTAB judge, agreed that tighter claim construction standards appear to be on the horizon. “My sense is that he is not focused on harmonizing outcomes at the PTAB and district court, but rather to give both the PTAB and district judges more basis to rely on each other's claim constructions,” Kamholz said. “That will save duplicated effort and could help parties make less speculative decisions about initiating proceedings in either forum.”

The PTO did not immediately respond to a request for clarification about which standards Iancu was referring to.

Drinker Biddle & Reath partner Robert Stoll, who took in Iancu's speech in person, welcomed the comments on Section 101. “The Supreme Court cases themselves say they're to be narrowly interpreted,” said Stoll, a former commissioner of patents at the PTO. Just as the Federal Circuit has to figure out ways to make the law work in practice, so too does the PTO when patents are being issued. “He's saying 'I will interpret, and I will interpolate, those decisions to come up with better guidance for the examiners,'” Stoll said.

As he often does, Iancu told the story of an individual inventor—in this case SanDisk co-founder Eli Harari—to illustrate the potential rewards of properly incentivized innovation. “The rhetoric surrounding the patent system has focused relentlessly on certain faults in, or abuses of, the system—instead of the incredible benefits the system brings to our nation,” Iancu said.

Stoll said he considered that message important. “He's saying, 'If you like the patent system, quit saying it's terrible,'” he said. “'Let's work to fix it, but the patent system is the best thing we've got.'”