By Ed Reines and Nathan Greenblatt*
The Patent Reform Act of 2009 includes a provision allowing interlocutory appeals of claim construction orders. As drafted, the provision gives the authority for approval of such an appeal to the district courts, without giving the Federal Circuit discretion to decline the appeal. This approach is misguided. Failure to give the court of appeals a voice in the interlocutory appeals process flouts cautions inherent in the final judgment rule since its enactment in 1789, ignores the different institutional concerns of district and appellate courts, and will create problems of piecemeal appeals, undue delay, and crowded dockets that will impair the effectiveness of the Federal Circuit and contravene the purpose for enacting the provision in the first place.
In addition, the perceived problem of excess reversals of claim construction rulings that has motivated the current provision is a function, if anything, of the de novo review standard applicable to claim construction, not the final judgment rule. Thus the proposed solution does not address the true issue in any event – it masks it.
Continue reading the article Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009.pdf
* The views expressed in this article are those of the authors and do not necessarily reflect the views of Weil, Gotshal & Manges LLP or any of its clients.
 See S. 515 sec. 8(b).
 Id. (amending 28 U.S.C. § 1292(c)(2) by giving the Federal Circuit exclusive jurisdiction):
(3) of an appeal from an interlocutory order or decree determining construction of claims in a civil action for patent infringement under section 271 of title 35. Application for an appeal under paragraph (3) shall be made to the court within 10 days after entry of the order or decree. The district court shall have discretion whether to approve the application and, if so, whether to stay proceedings in the district court during the pendency of such appeal.
 See, e.g., 6/6/2007 Testimony of Mary E. Doyle before the Senate Committee on the Judiciary regarding “Patent Reform: The Future of American Innovation” at 9-10 (arguing that interlocutory appeal is needed because “claim construction rulings are so frequently reversed by the Federal Circuit”).