Teva, Nautilus, and Change Without Change
19 Pages Posted: 30 Mar 2015 Last revised: 11 Oct 2015
Date Written: March 26, 2015
Over the past several years, the Supreme Court has been remarkably active in patent law. Out of all those decisions, which touched almost every aspect of patent law, the ones with the greatest potential to shake the foundations of patent law were the Court’s opinions addressing claim meaning. “The name of the game is the claims,” after all. Almost everything in patent law flows from the claims. Thus, when the Supreme Court granted certiorari in Nautilus v. Biosig, and then three months later in Teva v. Sandoz, the expectation was that great change was afoot.
On the surface, the Court’s opinions bore out that expectation. In both Nautilus and Teva, the Supreme Court expressly rejected the Federal Circuit’s approach and replaced it with its own. But in the months since, the doctrines the Court addressed in Nautilus and Teva have changed very little. It seems to be business as usual at the Federal Circuit. The Federal Circuit continues to routinely reject indefiniteness challenges and grant no formal deference to district courts in reversing their claim constructions. Meanwhile, its formal doctrinal analyses look virtually identical to those before the Supreme Court intervened.
This change without change raises two important questions: first, how has the Federal Circuit accomplished it from formal, legal perspective? In other words, how is it that the Federal Circuit, seemingly constrained by the express instructions of the Supreme Court, nonetheless managed to avoid any meaningful change to the doctrines of claim meaning? Second, what does the future hold, particularly for claim construction, as the district courts rely on Teva and adapt their claim construction opinions to expressly rely on factual findings?
This Essay examines the Federal Circuit’s jurisprudence following Nautilus and Teva to answer these questions.
Keywords: Patent, Teva, Nautilus, claim construction, indefiniteness
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