Here's the question Wegner wants the Supreme Court to address:

Does the Federal Circuit standard of de novo review of construction of documents – here, the patent claim – violate the 'clearly erroneous' standard of review under FRCP 52(a), particularly where it is in conflict with other circuits and in direct violation of Pullman-Standard that Rule 52(a) 'does not make exceptions or purport to exclude certain categories of factual findings'?

Wegner:

Fact-finding of documentary evidence is always reviewable under the clear error standard of FRCP 52(a): "Findings of fact… based on … documentary evidence[ ] shall not be set aside unless clearly erroneous…" As per Anderson, "[t]hat the Rule goes on to emphasize the special deference to be paid credibility determinations does not alter its clear command: Rule 52(a) 'does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court's findings unless clearly erroneous.'" Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)(quoting Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982)).

Clearly, the patent claim is one of the more complex forms of documentary evidence that falls squarely within the rule: The "patent claim [is that] portion of the patent document that defines the scope of the patentee's rights[.]". Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996). Interpretation of the patent claim is invariably one of the most fact-intensive inquiries a trial court can make that requires determining the meaning of terms to art-skilled worker years back when the invention was made, the contemporaneous state of the art and other factors.

Post-Phillips, the balkanization of claim construction rulings at the court has intensified: Kim v. Conagra Foods, Inc., __ F.3d __ (Fed. Cir. 2006)(Dyk, J.)(Schall, J., dissenting), is the fourteenth post-Phillips claim construction dissent – a nearly 300 % increase vis a vis an eight year period before Phillips.

From the recent SRAM v Ad-II Engineering decision (05-1365), where the CAFC ignored both patent office and district court agreement on claim construction; the CAFC construing the asserted claim broader, thus anticipated by prior art:

When evaluating a motion for summary judgment, the court views the record evidence through the prism of the evidentiary standard of proof that would pertain at a trial on the merits. Anderson, 477 U.S. at 252-53. Under the patent statutes, a patent enjoys a presumption of validity, see 35 U.S.C. § 282, which can be overcome only through facts supported by clear and convincing evidence, see U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1563, (Fed. Cir. 1997). Thus, a moving party seeking to invalidate a patent at summary judgment must submit such clear and convincing evidence of facts underlying invalidity that no reasonable jury could find otherwise. See Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893 (Fed. Cir. 1984).

Claim construction is a question of law that this court reviews de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). Anticipation is a question of fact. Med. Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1220 (Fed. Cir. 2003).

The asserted claim was 4,900,291 claim 16.

The ’291 patent describes and depicts several embodiments of shift actuators, mounted on a handlebar inboard of a “fixed handgrip.”

By failing to recite any indexing, claim 16 fails to claim the positive indexing feature and recites nothing more than a broad method that applies both to indexed shifters and to non-index shifters alike. While SRAM strongly urges the court to interpret the claim to encompass the innovative precision indexing shifting feature it contends it has invented, we are powerless to rewrite the claims and must construe the language of the claim at issue based on the words used.

SRAM also urges that we adopt the district court’s construction of claim 16 as providing for “precision indexed downshifting” on the ground that, after three reexamination proceedings, the Patent Examiner—like the district court—construed claim 16 as providing “precision indexed downshifting” as a means to take up lost motion, and confirmed its patentability over prior art gear-shifting devices that require a user to manually overshift. This argument is not persuasive. While the Patent and Trademark Office (the “PTO”) generally gives claims their broadest reasonable interpretation consistent with the specification, see In re American Academy of Science Tech Center, 367 F.3d 1359, 1364 (Fed. Cir. 2004); In re Bond, 910 F.2d 831, 833 (Fed. Cir. 1990), paradoxically in this case, the PTO construed the claim narrowly, rather than broadly, by reading in the same limitation as did the district court. In doing so, the PTO erred for the same reasons as did the district court. The Patent Examiner’s actions thus provide no support for SRAM’s argument. Furthermore, this court is not bound by the PTO’s claim interpretation because we review claim construction de novo. Cybor Corp., 138 F.3d at 1456.

The CAFC makes a point about the patent office & district court reading more into the claim than was stated: "precision indexed downshifting" isn't in claim 16.

16. In a bicycle derailleur gear shifting system having a rear derailleur shifting mechanism, a shift actuator, and control cable means operatively connecting said actuator to said shifting mechanism, a method of performing down-shifting events from a relatively smaller origin freewheel sprocket to a relatively larger destination freewheel sprocket, which comprises:

first moving said shift actuator a sufficient amount to take up substantially all of the cumulative lost motion in said derailleur mechanism and said cable means; and

then moving said shift actuator a further amount to as to move the bicycle chain at least substantially the distance between the centers of said origin and destination sprockets.

But, the CAFC didn't need de novo "throw the baby out with the bathwater" review to find broader construction. The claim construction error by the PTO and district court is stunningly obvious, "clearly erroneous" within FRCP 52(a). No need for the CAFC to overreach de novo.

Phillips v AWH laid out a priority stack for evaluating evidence for claim construction. What does all the post-Phillips dissent mean? In Kim v. Conagra Foods, the dissent was about the majority failing to properly appreciate intrinsic evidence: "For me, the problem with the majority’s claim construction is that it focuses almost exclusively on the Background section of the ‘355 patent and fails to take into account the remainder of the specification and the prosecution history." Does the impact of Phillips, having clarified how claims should be construed, make the factual basis for construction more contentious? Did Phillips render the legal basis for claim construction so clear that all that's left to argue about are the facts? If so, then, all the dissenting opinions point to claim construction as fact-based, and de novo review of claim construction on appeal, as Wegner points out, a violation of FRCP 52(a).