Reconsidering Cybor: A Hybrid Standard of Appellate Review of Patent Claim Construction Rulings

Abstract

This brief contends that the Federal Circuit's Cybor plenary de novo standard of appellate review of claim construction rulings misapprehends the mixed fact/law nature of patent claim construction and 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. These effects have cast doubt on the predictability of patent litigation, discouraged settlements following claim construction and trial, delayed resolution of patent disputes, and run up the overall costs of patent litigation. The brief shows that 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.

Keywords: patent, claim construction, standard of review, Markman