Author(s): Peter S. Menell
Year: 2013
Abstract:
This
brief contends that the Federal Circuit’s Cybor plenary de novo standard
of appellate review of claim construction rulings misapprehends the
mixed fact/law nature of patent claim construction and has frustrated
district courts’ distinctive capabilities for apprehending and resolving
the factual disputes inherent in claim construction determinations,
undermined the transparency of the claim construction process,
discouraged detailed and transparent explanations of claim construction
reasoning, and produced alarming levels of appellate reversals. These
effects have cast doubt on the predictability of patent litigation,
discouraged settlements following claim construction and trial, delayed
resolution of patent disputes, and run up the overall costs of patent
litigation. The brief shows that the Supreme Court’s Markman decision
supports a balanced, structurally sound, legally appropriate, hybrid
standard of appellate review that would promote more accurate, efficient
patent dispute resolution.
Keywords: patent, claim construction, standard of review, Markman
Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2289343