November 2, 2011
In the dissent from the denial of rehearing en banc in Retractable Technologies, Inc. v. Beckton, Dickson , October 31, 2011 (see my October 31 post and link to the order), Judge Moore wrote, joined by Chief Judge Rader, the following:
“Claim construction is the single most important event in the course of a patent litigation. It defines the scope of the property right being enforced, and is often the difference between infringement and non-infringement, or validity and invalidity. Despite the crucial role that claim construction plays in patent litigation, our rules are still ill-defined and inconsistently applied, even by us. Commentators have observed that claim construction appeals are “panel dependent” which leads to frustrating and unpredictable results for both the litigants and the trial court. See, e.g., Fed. Cir. Split for 2nd Time In 2011 On Use of Patent Specification In Claim Construction, BNA Patent, Trademark & Copyright Law Daily (noting the “disagreement within the Federal Circuit on the extent to which judges may look to the patent specification to interpret claims continues”); Court Continues to Struggle with Claim Construction, Patently-O (2011), http://www.patentlyo.com/patent/2011/07/court-continues-to-struggle-with-claim-construction.html (noting the “panel dependence” in claim construction); see also Wegner, H.C., Arlington Indus. v. Bridgeport Fittings: The 20 Year Claim Construction Debate, IP Frontline, http://www.ipfrontline.com/depts/printabletemplate.aspx?id=24829 (“Until there is a final resolution of this debate there will never be clarity in claim construction at the Federal Circuit.”). Nowhere is the conflict more apparent then in our jurisprudence on the use of the specification in the interpretation of claim language.”
In a separate dissent, Judge O’Malley did not criticize the methodoloy but did criticize the Cybor (de novo) standard of review. Judge O’Malley underscored that the lack of deference to the factual context of claim construction produced such inconsistent results that there was a split of 2-1 in the panel decision.
Here is the question for the house. Please comment. If three Federal Circuit Judges say that claim construction now is so unpredictable as require en banc rearticulation of how to do claim construction (whether due to a split or splits among the panels, or the standard of review under Cybor) + if the panel itself split two to one on this one case + the panel’s 2 to 1 majority, reverses the constructions used by two district judges, THEN how can there be any intentional infringement of a patent?
How can we have a law of willful infringement (short of copying)? How can we have a law of inducement? How can we have any intent based infringement if the law of claim construction is in such a mess that multiple experienced judges disagree on the result, methodology and standard of review that should be applied?
How can litigants be found to intentionally infringe when the property right itself is not subject to definition short of a final appellate opinion?
Should defendants move for summary judgment on inducement claims? On willfulness? On the basis that there cannot be a penalty for violation beyond those available for direct infringement, when no one can predict prior to the court of appeals’ decision what will be a violation?
What do you think?
Filed under: Uncategorized