Kyle Musgrove in Bloomberg BNA IP Law: Is Altering Patent Construction Review ‘Worth the Candle'? Stakeholders Weigh In


Oral arguments at the Supreme Court over whether the Federal Circuit should give more deference to district court's patent claim construction judgments, saw Justice Samuel A. Alito question what “practical significance” would be achieved by a change in the standard of review (200 PTD, 10/16/14).

Two days later, practitioners predicted that the court would compel the appeals court to review underlying factual determinations for clear error, but most joined Alito in questioning whether that will alter the outcome in most cases... 

Markman Dictates Otherwise

“Everyone seems to concede that Markman has established that the ultimate interpretative decision of the claim is legal, and thus, the interpretation itself is subject to de novo review,” C. Kyle Musgrove of Haynes and Boone LLP, Washington, said...

Therefore, the stakeholders commenting to Bloomberg BNA generally addressed the question of what would happen if option three became the standard. 

“The proposal is that this would be similar to an obviousness-type determination, where the ultimate legal determination is subject to de novo review but the factual question of the level of skill in the art is a factual determination that must be shown to have been a source of clear error,” Musgrove said.

Excerpted from Bloomberg BNA IP Law, October 20, 2014. To view full article, click here (subscription required).

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