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High Reversal Rate of Markman Decisions Weakens their Intended Value
In Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), the Supreme Court held that patent claim construction is an issue of law to be decided exclusively by the court rather than the jury. As a result, district court judges now routinely conduct what is referred to as pretrial Markman hearings in order to resolve disputes about the meaning of words or phrases in patent claims. Prior to Markman, claim construction took place at trial and was decided by the judge or the jury with appropriate instructions from the court.
In theory, placing claim construction solely in the province of the court was intended to simplify the trial and provide uniformity, predictability and reliability. In practice, Markman has provided a vehicle for the district court to avoid a lengthy trial by facilitating the grant of summary judgment of invalidity, noninfringement or infringement following a relatively short pretrial claim construction hearing. However, the practice frequently backfires because the Court of Appeals for the Federal Circuit reverses and remands a high percentage of these cases because of erroneous claim constructions. Thus, instead of cutting back on the amount of time and money expended on patent litigation, the Markman decision often has the opposite effect.
Has the Markman decision provided an all-too-easy escape route for district court judges who do not wish to endure lengthy and complex patent infringement trials? This article summarizes several recent cases in which the Federal Circuit reversed and remanded summary judgment decisions because of an erroneous claim construction at the district court level. Possible alternatives to this often inefficient procedure are suggested.
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