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Post-<i>Phillips</i>: Will The Trial Courts Receive More Deference in Patent Cases?

By David H. Bluestone
October 03, 2005

The most important question in every patent case is “what do the claims mean?” The district court answers this question in its claim construction ruling. Presently, every aspect of a district court's claim construction is reviewed de novo by the United States Court of Appeals for the Federal Circuit.

The de novo standard of review does not require the Federal Circuit to give any deference to the district court's reasoning or conclusions. Notwithstanding statements by several Federal Circuit judges that the district court's analysis is taken into account, the lack of a higher standard of review seems to encourage the losing party to file an appeal. After all, why not take a mulligan on the issue and try again with a panel of three new judges?

The problem of de novo review is tied to the nature of patent claims themselves. Patent claims, the series of numbered paragraphs at the conclusion of the patent, define the scope of the patent owner's rights. Yet, because of the technical nature of inventions, the determination of the scope of rights is not easily made. Words have different meanings under different conditions. To a civil engineer, a “drain” is a channel that carries away surface water; to an electrical engineer, it is a region in a field-effect transistor into which electrons flow; to others, it is the hole at the bottom of the sink.

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