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."

Previously on Avvika.com

July 31, 2007

More Patent Nonsense

July 18, 2007

Patent Nonsense

June 4, 2007

Software Patents in the UK - Part 2 of 3

May 31, 2007

Software Patents in the UK - Part 1 of 3

May 14, 2007

Microsoft Accuses FOSS of Infringing 235 Patents

May 10, 2007

KSR v. Teleflex

May 2, 2007

Microsoft v. AT&T

April 26, 2007

Hedge Funds Fueling Patent Litigation

April 24, 2007

EU Commission Supports Rapid Introduction of a Community Patent

April 17, 2007

Linux: a patent-tax-free alternative to Windows?

April 11, 2007

EPO Boards of Appeal Decision T 1023/06: Computer Implemented Game Process

April 4, 2007

Commission sets out vision for improving patent system in Europe

Note: This site is under continuous construction. New material is added frequently. Some links may be inactive and some may fail (often only temporarily) without warning. News items are added regularly depending on events and your commentator's workload. Old news items are placed ced here in the archive. Embedded external links may expire and I may also delete/edit items in the archive without warning. I apologize for any inconvenience. This website contains general information relating to patents and other intellectual properties and is presented for informational purposes only. Nothing herein is offered as legal advice.

Avvika Aktiebolag
Organisation No. 556716-6599

Postbox 24203
104 51 Stockholm, Sweden
Tel. +46 70 818 4863


Site contents and HTML code, Copyright 2007 Avvika AB.