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Restoring The Fact/Law Distinction In Patent Claim Construction, J. Jonas Anderson, Peter S. Menell

NULR Online

Two decades ago, the Supreme Court sought to promote more effective, transparent patent litigation in Markman v. Westview Instruments by ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” In so doing, the Court removed interpretation of patent claims from the black box of jury deliberations by holding that the Seventh Amendment right to a jury trial did not extend to patent claim construction. Failing to find clear historical evidence of how claim construction was handled in 1791, the Court turned to “the relative interpretive skills of …