Patent Claim Construction Under Teva V. Sandoz: Deference at Last or More of the Same?

Abstract

The proper construction of patent claims is a point of contention as old as patent claims themselves. Several Supreme Court and Federal Circuit decisions over the past two decades have given courts guidance as to how to read patent claims and whether construction is a question most suited for the judge or the jury. The Supreme Court in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. recently addressed an outstanding question: Should the Federal Circuit review district court claim constructions de novo or for clear error. While the holding in Teva seems to provide clear and rational guidance, the appellate decisions that have issued in the wake of Teva suggest that the question is not fully settled. These post-Teva cases highlight the tensions that continue to exist between the Federal Circuit and the remainder of the administrative and judicial bodies that handle allegations of patent infringement. It seems the Federal Circuit has read the Teva opinion as narrowly as possible in order to maintain significant control over patent claim construction — likely more control than the Supreme Court intended. This interpretation and implementation of Teva by the Federal Circuit is likely to significantly impact decisions made both by counsel and judges in federal district court and the USPTO as they seek to maintain some deference for their own constructions.