Judicial Management of Patent Claim Construction

Abstract

Patent litigation has gained increased Supreme Court and Congressional attention in recent years. Concern over the Court of Appeals for the Federal Circuit's frequent reversal of district court patent claim constructions has sparked critical commentary and proposed legislation intended to address the high reversal rate. Recently, several groups have issued recommendations for federal district court judges on how best to manage claim construction, minimize the likelihood of reversal, and reduce the costs of litigation. This paper presents the results of a survey of federal district court judges. The survey assessed the case management and claim construction procedures currently used by these judges. We compare the judges' reported practices with the recommendations contained in four recent sources: the Federal Judicial Center's Manual for Complex Litigation (Fourth Edition) (MCL), the Patent Litigation Committee of the American Intellectual Property Law Association's 2004 Report (AIPLA Report), the guidelines issued by the Federal Circuit Bar Association in 2005 (FCBA Report), and the public comment draft of the Report on the Markman Process released by the Sedona Conference in 2006 (Sedona Conference Report). In general, the surveyed judges' reported practices are consistent with these sources' recommendations. When judges' strategies differ from the sources' guidelines, the differences are not extreme. The survey assessed the practices of judges who are both relatively and with patent litigation and claim construction, and judges in these two groups tended to give similar answers. The few times more experienced and less experienced judges' answers differed are noted in the text.