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Use of Dictionaries to Construe Patent Claims: Potential for Clarification from the Federal Circuit

BY James J. Elacqua, Andrew N. Thomases,
October 08, 2004

The U.S. patent system grants patentees the right to exclude others from practicing a patented invention, which is defined by a patent's claims. As such, the patent statute requires that patent claims be clear and definite. The policy underlying this requirement is to ensure that competitors are provided with fair notice as to the scope of the claimed invention.

In 1982, Congress created and transferred exclusive appellate jurisdiction over patent cases to the Federal Circuit with the hope that a single appellate court reviewing patent litigation would lead to a unified body of patent law. However, patent litigation remains unpredictable, due in part to the uncertainties involved in the process of interpreting patent claims. In the past 10 years, the Federal Circuit has attempted to establish clarity and uniformity in claim construction. According to practitioners and judges, the Federal Circuit's attempts have been met with limited success and potentially additional confusion. As such, claim construction under the current patent system remains unpredictable, as the Federal Circuit often reverses or modifies district courts' claim construction rulings.

However, relief might be in sight. In Phillips v. AWH Corp., 363 F.3d 1207 (Fed. Cir. 2004), the Federal Circuit ordered an en banc rehearing of the issues concerning the construction of patent claims, including when construing courts should look to dictionaries for construction.

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