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The Proven Key: Roles And Rules For Dictionaries In The Patent Office And The Courts, Joseph Scott Miller, James A. Hilsenteger
The Proven Key: Roles And Rules For Dictionaries In The Patent Office And The Courts, Joseph Scott Miller, James A. Hilsenteger
Scholarly Works
The U.S. Court of Appeals for the Federal Circuit, in its continuing effort to develop a patent claim construction jurisprudence that yields predictable results, has turned to dictionaries, encyclopedias, and similar sources with increasing frequency. This paper explores, from both an empirical and a normative perspective, the Federal Circuit's effort to shift claim construction to a dictionary-based approach. In the empirical part, we present data showing that the Federal Circuit has, since its own in banc Markman decision in April 1995, used reference works such as dictionaries to construe claim terms with steadily increasing frequency. In addition, and contrary to …
Enhancing Patent Disclosure For Faithful Claim Construction, Joe Miller
Enhancing Patent Disclosure For Faithful Claim Construction, Joe Miller
Scholarly Works
Claim construction jurisprudence is in disarray. The U.S. Court of Appeals for the Federal Circuit reverses trial court claim construction decisions at a worryingly high rate. The proportion of Federal Circuit claim construction opinions that include separate concurrences or dissents continues to grow. And the muddled mix of issues the Federal Circuit framed for en banc review in the Phillips case suggests that the court is having trouble reaching consensus on what the central questions are, much less on how to answer them. Perhaps the path to adequately predictable claim construction is continued tinkering with the analytical constructs internal to …