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Courting Specialization: An Empirical Study of Claim Construction Comparing Patent Litigation Before Federal District Courts and the International Trade Commission


David L. Schwartz


Illinois Institute of Technology - Chicago-Kent College of Law


William & Mary Law Review, Vol. 50, p. 1699, 2009
Chicago-Kent Intellectual Property, Science & Technology Research Paper No. 10-023

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.

Number of Pages in PDF File: 42

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

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Date posted: September 19, 2008 ; Last revised: January 19, 2010

Suggested Citation

Schwartz, David L., Courting Specialization: An Empirical Study of Claim Construction Comparing Patent Litigation Before Federal District Courts and the International Trade Commission. William & Mary Law Review, Vol. 50, p. 1699, 2009; Chicago-Kent Intellectual Property, Science & Technology Research Paper No. 10-023. Available at SSRN: http://ssrn.com/abstract=1270428

Contact Information

David L. Schwartz (Contact Author)
Illinois Institute of Technology - Chicago-Kent College of Law ( email )
565 W. Adams St.
Chicago, IL 60661-3691
United States

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