This article published by Robert Asher in April , 2012 but till now there is no action in unity approach for Claim Construction ! I think all politics for both ends .JMO

Proposal for a Unitary Approach to Claim Construction

Although Congress created a single court of appeals, the Federal Circuit, to handle patent appeals from both the district courts and the PTO, a uniform standard for determining patent invalidity has been elusive.

The validity of patents currently depends upon one approach to claim construction in the district courts and an entirely different approach in the PTO. A unitary approach to claim construction of issued U.S. patents should create greater certainty and enhance confidence in the judicial system.

Under current law, the validity of a patent can depend on whether it reaches the Federal Circuit from a district court decision or from the Board of Patent Appeals and Interferences, rather than on a consistent measure of the merits of the invention. To interpret the claim one way for validity in the courts and another for validity in an inter partes review violates a fundamental principle of patent law: A claim in a patent cannot, the U.S. Supreme Court once ruled, be treated “like a nose of wax which may be turned and twisted in any direction.” White v. Dunbar (1886).

If the Patent Trial and Appeal Board is determining the “proper meaning” of a claim pursuant to the America Invents Act, shouldn’t the court also be deciding patent disputes on the basis of the “proper meaning” for the claims? Can courts decide a case on the basis of a claim construction that is not “proper”? The language of the America Invents Act appears to sing out for a unitary approach to claim construction.

This is a great opportunity for courts to take a fresh look at determining the best framework for claim construction. The claims of a patent are required to particularly point out and distinctly claim the subject matter which the applicant regards as his invention. Whereas the claims are written and examined to provide a certain scope, the specification fills a different role.

In arriving at a uniform approach, greater certainty will result from construing claim language in keeping with the full scope of its plain and ordinary meaning (unless redefined or disavowed as explained in Thorner) rather than attempting to construe the meaning of a patent specification, as the court struggled to do in the Marine Polymer case.

Will Inter Partes Review Replace Markman as the Center of Attention?

If courts adopt a uniform claim construction for review proceedings and litigation, such a proceeding could serve a Markman-like function. Unlike a Markman hearing in court, the PTAB decision can be reviewed on appeal by the Federal Circuit before the district court case proceeds to trial. Thus, by staying a litigation for an inter partes review, a district court may benefit from a Federal Circuit-approved construction of the patent claims.

Stays will be further beneficial because an inter partes review can result in a settlement, unlike reexaminations which continue even without the involvement of the parties. Inter partes review also holds the possibility of a cancellation of some or all of the patent claims or confirmation of the patentability of some of the claims with estoppel effect.

For this reason, stays should be more readily granted. If the PTAB can issue its final decisions in a timely manner, inter partes review is likely to be a big hit and may even replace Markman hearings as the defining moment in many patent litigations.

A uniform and more predictable claim construction approach would enhance our patent system and the economy. The America Invents Act opens vast new possibilities for bringing greater certainty to patent jurisprudence.