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

35 Pages Posted: 7 Jul 2013 Last revised: 1 Jan 2015

See all articles by Peter S. Menell

Peter S. Menell

University of California, Berkeley - School of Law

Date Written: July 5, 2013

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

Suggested Citation

Menell, Peter S., Reconsidering Cybor: A Hybrid Standard of Appellate Review of Patent Claim Construction Rulings (July 5, 2013). UC Berkeley Public Law Research Paper No. 2289343. Available at SSRN: https://ssrn.com/abstract=2289343 or http://dx.doi.org/10.2139/ssrn.2289343

Peter S. Menell (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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