Claim Construction: How Should the Supreme Court Weigh In?
Claim construction is a fundamental aspect of every patent case, and is often the determining factor in whether a patent holder wins or loses in litigation. Claim construction has, however, become an area of tremendous uncertainty, requiring significant resources of both the courts and the parties. Under current Federal Circuit law which does not afford any deference to the lower courts, this uncertainty extends even after a District Court has issued its claim construction order.
Given the high reversal rate in the Federal Circuit, there has been a call for many years to afford District Courts more deference in their claim construction determinations. Is the Supreme Court finally set to weigh in on this critical issue? In Teva Pharmaceuticals USA, Inc. v. Sandoz Inc, the Supreme Court recently granted certiorari to address the issue of whether a District Court’s factual findings in support of its claim construction may be reviewed de novo, as the Federal Circuit has held, or only for clear error, as Rule 52(a) requires.
At the June IP Roundtable, Jeff Fisher and Alex Reese led an interactive discussion on this issue which may lead to a new era of construction of patent claims. Read their outline here.