Simplicity at the Cost of Clarity: Appellate Review of Claim Construction and the Failed Promise of Cybor

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WILLIAM H. BURGESS In its en banc ruling in Cybor Corp. v. FAS Technologies, Inc., the Federal Circuit attempted to settle much of the confusion surrounding appellate review of claim construction with a simple bright-line rule–-it declared that claim construction is a pure matter of law with no underlying factual inquiries, and therefore reviewable de novo on appeal. In the years leading up to Cybor, the federal district courts were struggling to apply the Federal Circuit’s rules on claim construction, and the Federal Circuit and the district courts were struggling to parse the issues of fact and law implicated in claim construction. The promise of Cybor was in its simplicity. No longer would the district courts have to separate issues of law and fact in claim construction, and by securing de novo review the Federal Circuit would be freer to lead by example and could ensure consistency and uniformity in claim construction by taking the issue for itself. Further, the Cybor ruling has been understood as wholly consistent with the Supreme Court’s prior decision on claim construction in Markman v. Westview Instruments, Inc. In this Comment, I argue that, counterintuitively, the bright-line rule drawn by Cybor has resulted in a great deal of inconsistency in the Federal Circuit’s claim construction jurisprudence. The reason for this, I argue, is that certain issues underlying claim construction are