About the Authors

  • The Authors and Contributors of "Patent Docs" are patent attorneys and agents, many of whom hold doctorates in a diverse array of disciplines.
2018 Juristant Badge - MBHB_165
Juristat #4 Overall Rank

E-mail Newsletter

  • Enter your e-mail address below to receive the "Patent Docs" e-mail newsletter.

Contact the Docs


  • "Patent Docs" does not contain any legal advice whatsoever. This weblog is for informational purposes only, and its publication does not create an attorney-client relationship. In addition, nothing on "Patent Docs" constitutes a solicitation for business. This weblog is intended primarily for other attorneys. Moreover, "Patent Docs" is the personal weblog of the Authors; it is not edited by the Authors' employers or clients and, as such, no part of this weblog may be so attributed. All posts on "Patent Docs" should be double-checked for their accuracy and current applicability.
Juristat #8 Overall Rank


« Patent Eligibility and In re Grams | Main | Several EU Members Push for Unified Patent System »

December 29, 2010


I will lol if their rates for reversal on matters of lawl are higher than the normal judges.

Actually, 6, Professor Schwartz from Kent Law School has a series of papers showing that there is no correlation between judicial experience with patent litigation and reversal rate for claim construction. I think this means not that the judges do not benefit from experience but that claim construction is the ultimate case-by-case case - each claim is different, so construction of claim 1 in case A doesn't help much with construction of claim 2 in case B. Indeed, a district court judge sitting on a CAFC panel excoriated his brethren a few years ago on this very point - that the "canons of construction" promulgated by the court are not much help to district court judges.

It will be interesting to see the effect that Judge O'Malley will have now that she is on the court - particularly in view of Chief Judge Rader's antipathy to how the court reviews claim construction.

Thanks for the comment, and Happy New Year.

Oh I wouldn't doubt that the rates will be the same, but it will truly be something worthy of laughs if the rate is higher.

I agree with you on the case by case thing, but I do believe that claim construction is somewhat of an art in and of itself, and you can only get better with experience. And I don't know if I agree with the DC judge's excoriation of his buds. I find the canons to be rather helpful and I see no reason why a DC judge would not also. Now, perhaps it would be better if they were a little more in depth and a little less cryptically worded, but the judiciary always shys away from providing such a thing. In the end of course every claim construction boils down to a judgement call, and it just so happens that through a technicality it is one which they are afforded no difference. I don't think the USSC ever had this question before them, whether or not claim construction should be reviewed De novo, but it would be nice for them to step in and put some level of difference in.

And yeah it will be interesting to see the effect of the new judge. As I understand it there are 2 more spots open, we should get those filled as well. They have a backlog up there don't they? Another 3 man panel (including the new girl and the 2 open spots) should help ease that.

By the by, did you happen to see the WOW Glider case in one of the District courts of Appeals where they declined to adopt the Fed Circ's principle in their DMCA interpretation in the case with the garage door opener manufacturer?

You might not know anything about those cases, but the later was on PO and I found the note in the WOW Glider case very interesting. Now we have a circuit split on the issue. Basically the Fed says that any action accused of happening under this specific section of the DMCA anti-circumvention provisions must be related to a copyright issue in order for it to even begin to have the provision be applicable to it. If the issue is, for instance, not related to a copyright infringement then the provision does not apply. However, the District Court of Appeals (I believe the 6th circ?) stated that they would interpret the provision literally and let it apply to any action unrelated to a copyright infringement that happens to circumvent anti-circumvention tech.

This split just goes to show even more than other cases that the Fed Circ. is quite a reasonable court (and maybe the best) when it comes to matters outside the realm of patents. The judges themselves are great judges, but they hold the patent law too close to their bossom.

If you want links to the cases and the decisions and all let me know I can post them.

The comments to this entry are closed.

April 2024

Sun Mon Tue Wed Thu Fri Sat
  1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30