Predictions in these circumstances are unreliable. Nevertheless, let’s take a stab. With the court short one justice, a plurality of four is sufficient to sustain the Federal Circuit’s application of the broadest reasonable construction. Based upon their comments, it would appear that Justices Sotomayor, Ginsburg, Kagan and Breyer lean towards maintaining the application of the broadest reasonable construction. Justices Kennedy and Alito also appear, based on their comments, to be possible votes in favor of maintaining application of the broadest reasonable construction. Justice Roberts appears opposed. Justice Thomas has offered no indication. Based on this presumed headcount, the broadest reasonable construction may be here to stay (at least for now).

Notwithstanding that prediction, however, parties filing IPR petitions in this uncertain environment may do well to suggest that their proposed constructions would not differ, regardless of the standard applied, or otherwise explain claims, whether construed under one or the other, are equally invalid under the identified prior art.