Constructive Criticism: Phillips v. AWH Corp. and the Continuing Ambiguity of Patent Claim Construction Principles

Abstract

The United States Court of Appeals for the Federal Circuit decided to rehear Phillips v. AWH Corp. en banc to reconcile its intracircuit split, clarify the proper principles of claim construction in a patent infringement or invalidity lawsuit, and provide litigants with some level of predictability in the appeals process. In anticipation of this decision, numerous commentators hypothesized, advocated, and opined about how the Federal Circuit would or should settle the law of claim construction. Although few agreed on a particular solution, nearly everyone agreed that one was needed to alleviate the instability and uncertainty plaguing the federal appellate process for claim construction appeals, and most were optimistic that the Federal Circuit's decision in Phillips would provide the answer. Unfortunately, the Federal Circuit's Phillips opinion failed to reconcile its intracircuit split, and in a disillusioning analysis, the en banc court blurred the lines between two competing claim construction authorities without providing any firm guidance to the district courts on how a judge should approach claim construction.