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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." "Surprisingly," Mr. 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 Markman v. 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 States. 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." |
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