“[T]he panel majority affirmed the Board’s decision, on the basis that the Board’s construction was ‘not inconsistent with the specification’s disclosure.’ But this Court has held that simply checking whether a construction is ‘not inconsistent’ with the specification is not the proper way to determine the broadest reasonable interpretation in light of the specification. See, e.g., Smith, 871 F.3d at 1383 (BRI standard ‘is not simply an interpretation that is not inconsistent with the specification’). Deep Green accordingly requests panel rehearing or rehearing en banc to resolve the conflict between the panel majority’s rationale and controlling precedent of this Court with respect to the determination of the broadest reasonable interpretation of a claim term.”
