Some patent law experts have noticed an internal rift in the Federal Circuit Court of Appeals in the area of claim construction. Some of the CAFC judges generally decide claim construct based on an "ordinary meaning" approach while others generally rely on patent documents such as the specification and prosecution history to determine the meaning of claims. UPenn Professor Polk Wagner has even created a Federal Circuit Predictor to predict the outcome of a claim construction apeal based on the appellate panel.
Thus far, Professor Wagner’s predictor has been seen as a cute but ineffective tool because the appellate panel is not given with any advance notice. The Predictor Tool adds certainty, but the lack of advance notice does not allow for any real settlement negotiations.
Now, in a public experiment, the Federal Circuit has begun to post the composition of panels the Thursday prior to the week of oral argument.
Thus, for instance, we now now that next Thursday (December 9) that the Panel of Rader, Friedman, & Plager will hear the Eolas v. Microsoft panel.
The court requests public comment on the experimental change.