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Abstract:
This article examines the question of whether United States district court judges improve their skills at patent claim construction as a function of experience, including as a function of having their own cases reviewed by the Court of Appeals for the Federal Circuit. In theory, higher courts teach doctrine to lower courts via judicial decisions, and lower courts learn from these decisions. This article tests the teaching-and-learning premise on the issue of claim construction in the realities of patent litigation. While others have shown that the Federal Circuit reverses a large percentage of lower court claim constructions, no one has analyzed whether judges with more claim construction appeal experience fare better on subsequent appeals.

Surprisingly, the data do not reveal any evidence that district court judges learn from prior appeals of their rulings. There is no suggestion of a significant relationship between experience and performance. The lack of evidence that Federal Circuit review aids district court judges is disconcerting. The article explores three possible explanations for the lack of evidence: (1) the indeterminate nature of claim construction; (2) that district court judges are incapable of or not interested in learning how to perform claim construction; and (3) that the Federal Circuit decisions do a poor job of teaching district court judges how to construe claims. These results shed critical light on the functioning of the patent system. Moreover, the results are relevant to a broader understanding of the relationship between higher and lower courts in general.

patent, claim construction, empirical, judge, reversal, judicial

Abstract:
The United States International Trade Commission (ITC) has recently become an important adjudicator of patent infringement disputes, and the administrative law judges (ALJs) on the ITC are widely viewed as experts on patent law. This Article empirically examines the performance of the ITC in patent claim construction cases. The Article also compares the performance of the ITC on claim construction with that of federal district courts of general jurisdiction. This study does not find any evidence that the patent-experienced ALJs of the ITC are more accurate at claim construction than district court judges or that the ALJs learn from the Federal Circuit's review of their decisions. When considered in the context of previous studies, the results of this study hint at three possible explanations for the lack of evidence: (1) trial judges (including the ALJs of the ITC) cannot master claim construction, especially without a technical background; (2) the Federal Circuit's claim construction case law is poorly articulated; or (3) claim construction is inherently indeterminate.

patent, claim construction, empirical, international trade commission, ITC, judge, district court, reversal rate