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« Court Report | Main | Patent Public Advisory Committee to Meet on Wednesday, March 3, 2010 »

March 01, 2010


Better yet, use a procedure of special masters and court-appointed experts to give informed and technically correct constructions at the trial level that is efficient and provides a complete record on appeal. The CAFC need not give deference to the District Court's ruling, but having a better record will minimize negative consequences from Cybor.


Nice piece. Unless a miracle happens (or God forbid, SCOTUS gets involved), nothing is going to rid Federal Circuit jurisprudence of the Cybor "claim construction is an issue of law for us to decide de novo" rule.

Dear Lawrence:

It would be interesting to do a study looking at the results on appeal for judges that use special masters (used to be a common practice in Boston, for example) compared with those who don't. As much as I'd like to think that better informed judges would do a "better" job (as defined by the Federal Circuit), I'm not sure. It also might be interesting to look at instances where the Federal Circuit affirmed the lower court (as here or in the Amgen v. HMR case a few years ago) and see how the district court judge performed the task - I know the judge in the Amgen case was very thorough in his analysis.

Thanks for the comment.

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