This article updates and elaborates on last year’s What Close Cases and Reversals Reveal About Claim Construction at the Federal Circuit. Like the previous article, this article provides empirical insight into claim construction at the Federal Circuit, by approaching the question with two unique and distinct subsets of data: (1) “reversals” of all district court claim construction decisions since Phillips v. AWH, and (2) “close cases,” or post-Markman claim construction cases that had dissents in which a currently-active judge participated. The past year’s reversals data once again confirms that district courts persistently favor narrow claim interpretations in cases in which they will be reversed. From this, it follows that most “reversals” reflect a failure of the district courts to follow Federal Circuit claim construction principles, rather than arbitrary fact finding by the Federal Circuit. As a result, a rule that awards more deference to district court claim constructions will likely create greater unpredictability, as district courts might be affirmed even if their decisions are not consistent with the Federal Circuit’s claim construction principles. The “close cases” data continues to document vast differences in approach among Federal Circuit judges in their approaches to claim construction. This article is particularly timely in light of the Supreme Court’s grant of certiorari in Teva v. Sandoz, where the Court will consider the Federal Circuit’s standard of review of district court’s claim construction.
Thomas W. Krause & Heather F. Auyang, What Reversals and Close Cases Reveal About Claim Construction: The Sequel, 13 J. Marshall Rev. Intell. Prop. L. 525 (2014)