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Is Patent Claim Interpretation Review Deference or Correction Driven?

22 Pages Posted: 17 May 2013 Last revised: 17 Mar 2014

Christopher Anthony Cotropia

University of Richmond School of Law

Date Written: February 7, 2014

Abstract

This article examines the Federal Circuit’s review of claim constructions by lower tribunals to determine whether the Federal Circuit defers to lower court constructions or is making its own, independent determination as to the “correct” construction and ultimate result in the case.

The data collected from 2010 to 2013 indicates that the Federal Circuit affirms about 75% of lower court claim interpretations. While this finding is itself surprising, even more surprising is that these reviews do not appear to be driven by deference. Instead, the Federal Circuit is unlikely to correct constructions that resulted in a patentee lose below, and the court is more likely to reverse claim constructions that resulted below in patentee wins. And this difference is magnified in cases involving electronics, information technologies, or business methods, with such patentees fairing even worse than others in claim construction appeals.

These findings suggest that the Federal Circuit’s review of claim interpretations is still truly de novo and performed to correct lower court decisions (a) where patentees win and (b) especially where patents covering electronics, information technologies, and business methods succeed.

Keywords: Patent, Claim Construction, Claim Interpretation, Federal Circuit, Appellate Review, Patent Scope, Patent Breadth, Deference

JEL Classification: K19, O33, O34

Suggested Citation

Cotropia, Christopher Anthony, Is Patent Claim Interpretation Review Deference or Correction Driven? (February 7, 2014). Brigham Young University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2265962 or http://dx.doi.org/10.2139/ssrn.2265962

Christopher Anthony Cotropia (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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