Abstract

http://ssrn.com/abstract=2012571
 


 



Patent Claim Construction as a Form of Legal Interpretation


Christian Mammen


University of California Hastings College of the Law

January 5, 2012

John Marshall Review of Intellectual Property Law, Vol. 12, No. 1, 2012
UC Hastings Research Paper No. 23

Abstract:     
Since the U.S. Supreme Court’s landmark decision, Markman v. Westview Instruments, Inc., courts have employed a textualist approach when construing patent claims. Claim construction has been held to be purely a matter of law, which leaves no room for deference when the construction is reconsidered on appellate review. But as argued in this article, patent claims are a unique type of legal text, and cannot simply be analogized to statutes or contracts, which courts and scholars occasionally attempt to do. Taking lessons from the general legal theory of interpretation, the textualist approach should only be a starting point for the interpretation of patents, rather than an all-encompassing approach. By adapting and using a range of theories of legal interpretation outside the patent sphere, we can find an approach to patent claim construction that more consistently results in satisfactory constructions. This may, for example, include consideration of fact-intensive inquiries such as an inventor’s intention and public policy. As a corollary, an expansive jurisprudential approach to patent claim construction calls into question current patent doctrine concerning the standard of review — should claim construction really be subject to de novo review?

Number of Pages in PDF File: 32

Keywords: patent, claim construction, legal interpretation

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Date posted: February 28, 2012 ; Last revised: February 27, 2013

Suggested Citation

Mammen, Christian, Patent Claim Construction as a Form of Legal Interpretation (January 5, 2012). John Marshall Review of Intellectual Property Law, Vol. 12, No. 1, 2012; UC Hastings Research Paper No. 23. Available at SSRN: http://ssrn.com/abstract=2012571 or http://dx.doi.org/10.2139/ssrn.2012571

Contact Information

Christian Mammen (Contact Author)
University of California Hastings College of the Law ( email )
200 McAllister Street
San Francisco, CA 94102
United States
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