Who says the claim construction is difficult? Who says it is unpredictable? Nonsense! Claim construction is easy! Anybody can do it. Simply follow the clear guidelines established by the Federal Circuit.
And what location the?
It is too easy. The Federal Circuit has kindly expose them decision today in banc in Phillips v. AWH Corporation. I just read that - all pages of fifty-six of the same.
Start with the opinion of the majority of the judges Bryson, Michel, Clevenger, Rader, Schall, Gajarsa, Linn, Dyk and Prost. And look at the additional opinions of judge Lourie, who is joined to parts I, II, III, V and VI and judge Newman, who joined to parts I, II, III and v. But don't forget dissent in part from the Lourie judge which joins judge Newman. And then there is dissent judge, judge Newman joins Mayer. But trust me, it makes sense. Really does it. I am so grateful that the Court has clarified things.
Seriously, I have not had chance to skim more than opinion, but my first reaction is, "you have to be kidding". While the short description of exploitation could well be that "the specification takes precedence over dictionaries in interpreting the claims," If the Court considers somewhat clarified confusing body of law which governs the construction of the claim, is very much mistaken. With thirty-eight pages of "clarity" in the opinion of the majority by itself, any removed moderately creative can be found broad support for just about any argument of construction of the claim that you would like to advance. And at the end of the day, while a majority of the judges claimed an agreement on the construction law, yet separated to how the underlying case must decide ultimately.
Personally, I think that the dissenting opinion of Mayer judges States much more eloquent than I what here is wrong. In his words, "more that never convinced the futility, indeed absurdity, the persistence of this Court to accede to the falsehood that claim construction is now a matter of law lacks any component facts". In a rare moment of judicial integrity, he acknowledges that "any attempt at a consistent level under this regime of fashion is useless, as demonstrated by our many failed attempts to do so".
Judges not asked me advice on how to straighten this mess, but anyway you offer some. How going back to basics, as judge Markey did so effectively in the first days of existence of the Court? What define the scope of the patent, focusing on the words of the claims, not to hide the statements in the specification? Do you remember that you there's still the seventh amendment and once more allow jurors to decide a patent that really reveals, the inventor of what actually invented and what really cover their assertions factual questions?
His illusion, of course, to believe the Court never voluntarily give their self-created power to make a final decision in each case of patents. Judge Mayer dissent noted in terms contrasts the reality of modern patent litigation: "but after receive over thirty amici curiae advises to propose not less than seven questions, and flogging the bar in a frenzy of expectation, we can say anything new but simply reiterate what has become the practice in the last ten years - which we will decide cases according to the results in any way or method in the results you want, or at least allows us an apparently plausible outside of the case form".
After a promising start, the Federal Circuit has lost its way to bring stability and predictability to the patent jurisprudence. Today's decision confirms that things may get worse before they get better.
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