June 27, 2008
An Empirical Study of Claim
Construction Rates (permalink)
In an upcoming article
in the Michigan Law Review entitled
Practice Makes Perfect? An Empirical Study of Claim Construction
Reversal Rates in Patent Cases (SSRN download page.) David Schwatrz
investigates whether U.S. District Court judges "with more claim
construction experience fare better on subsequent appeal."
Schwaz concludes (rather harshly), "the data do not reveal that district
court judges learn from appelate review of their rulings."
Since the U.S. Supreme
Court decided in
Westview (Cornell University Law School) in 1996 that claim
construction is a matter of law, the issuance of a so-called Markman
ruling has become a standard feature of patent litigation in the United
As Schwartz noted
"previous studies have shown that the Federal Circuit reverses decisions
on the issue of claim construction at an alarming rate" citing Kimberly
Moore's (now somewhat dated) 2001 empirical study that showed district
courts wrongly construed 34,5% of claim terms and that "29,7% of the
judgements entered in cases had to be reversed or vacated because of
erroneous claim construction."
In his article,
Reversing the Reversal Rate (Fordham University pdf), Paul M.
Schoenhard challenges the "pervasive perception that the Court of
Appeals for the Federal Circuit reverses district court rulings in
patent cases at an inordinately high rate."
Noting that there has been
"a precipitous drop in the Federal Circuit's reversal rate over the past
8 years - stabilizing at 13% in 2004 and 2005", he concludes that the
"Court's reversal rate has fallen in line with other courts of appeal."