February 27, 2014
Claim Construction Corruption
In the 1998 Cybor case, the CAFC granted itself the power to reconstrue claims de novo. That ruling has repeatedly raised controversy. In en banc rehearing of Lighting Ballast v. Philips, a majority of six reaffirmed the might of the CAFC to do as it damn well pleased. Judge Newman wrote the tortured but cogent majority opinion. Four judges dissented, including Chief Judge Rader. Their complaint: "construing the claims of a patent at times requires district courts to resolve questions of fact." Of course it does. But it would difficult to put the fix in if the fix wasn't baked in to begin with. The CAFC can't trust all the circuit court judges to be as corrupt as it is.
Posted by Patent Hawk at February 27, 2014 3:08 AM | Claim Construction