Phillips v. AWH (on petition for certiorari)
AWH has petitioned the Supreme Court to take-up this landmark case with the broad question of whether patent claims should be reviewed de novo on appeal.
Question Presented: Whether the Federal Circuit is correct in holding that all aspects of a district court’s patent claim construction may be reviewed de novo on appeal.
This petition picks up where Judge Mayer and Newman’s dissent left off in the en banc Phillips decision. In their dissent, the judges focused their attention on the “futility [and] absurdity” of the de novo rule.
Now more than ever I am convinced of the futility, indeed the absurdity, of this court’s persistence in adhering to the falsehood that claim construction is a matter of law devoid of any factual component. Because any attempt to fashion a coherent standard under this regime is pointless, as illustrated by our many failed attempts to do so, I dissent.
Indeed, many believe that the high reversal rate of claim construction is primarily due to the de novo standard. To that effect, AWH’s petition does not mince words:
Left to its own devices, the Federal Circuit will continue to improperly devote the chief measure of its energy to rejudging the facts of patent claim constructions, rather than to fulfilling its purpose of bringing uniformity to patent law.
A Phillips reply brief will be due shortly.