Phillips v. AWH: At the Supreme Court

Phillips v. AWHPhillips v. AWH (on petition for certiorari)

AWH has petitioned the Supreme Court to with the broad question of whether patent claim construction 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.

AWH’s 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.

Now Phillips has posted his opposition.  Phillips argues that claim construction should be considered a matter of law and should continue to receive de novo review.

The construction of written instruments is one of those things that judges often do and are likely to do better than jurors unburdened by training in exegesis.  Similarly, the Federal Circuit is uniquely equipped to make such determinations on appeal.

The main thrust of the Phillips argument, however, is that the case is not ripe for review because the CAFC did not rule on the issue of de novo review.