Informal Deference: A Historical, Empirical, and Normative Analysis of Patent Claim Construction , 108 Nw. U. L. Rev. 1 (2013)
The Federal Circuit has been the target of a flurry of criticism regarding its claim construction jurisprudence. District judges, members of the bar, academics, and even the court's own judges have been highly critical of the court's rate of reversal of claim construction appeals, which peaked above 40%. Partially in response to the critics, the Federal Circuit undertook to reassess its claim construction jurisprudence in the Phillips case in 2005. The empirical and theoretical studies that have emerged since Phillips suggest that little has changed: the Federal Circuit's high reversal rate persists and the court's procedures remain unaltered. This Article contradicts those perceptions based on a comprehensive empirical analysis of the Federal Circuit's claim construction jurisprudence from 2000 through 2011. We find that the reversal rate has dropped significantly since Phillips, dipping to 16.5% in 2009 from a high of 44% in 2004. Not only has the reversal rate plummeted, it has done so across the board: all judges on the Federal Circuit are now more likely to affirm claim construction decisions than they were previously, and nearly every technology sector case is more likely to be affirmed on appeal. Phillips signaled the beginning of an era of increasing yet "informal deference" to district court claim construction decisions.
The current era of informal deference does not mean, however, that the problems of claim construction have been adequately resolved. Notwithstanding the drop in the reversal rate, the Federal Circuit's adherence to the de novo standard has frustrated district courts' distinctive capabilities for apprehending and resolving the factual disputes inherent in claim construction determinations, undermined the transparency of the claim construction process, discouraged detailed and transparent explanations of claim construction reasoning, and produced alarming levels of appellate reversals. The Supreme Court's Markman decision supports a balanced, structurally sound, legally appropriate, hybrid standard of appellate review that would promote more accurate, efficient patent dispute resolution. Under this standard, the Federal Circuit would defer to trial judges' factual determinations in claim construction rulings-such as how a person having ordinary skill in the art would understand technical terms used in a claim-but would retain de novo authority over whether the trial court's factual finding inappropriately overrides more specific intrinsic indications of the patent's scope.