SUPREME COURT EXPRESSES INTEREST IN STANDARD OF REVIEW FOR CLAIM CONSTRUCTION

SUPREME COURT EXPRESSES INTEREST IN STANDARD OF REVIEW FOR CLAIM CONSTRUCTION  Today, the Supreme Court indicated an interest in reviewing whether claim construction is a purely legal question. This is a very important issue of which you should be aware.  Why is this a very important issue? Whether claim construction is a purely legal question greatly affects the chance that the Court of Appeals for the Federal Circuit (CAFC) will reverse a District Court decision in a patent infringement case. The CAFC currently considers claim construction a purely legal question. Treating claim construction as a purely legal question means that the CAFC conducts a “de novo” review of the claim construction conclusions of the District Court, in deciding an appeal. That treatment has led to a relatively high reversal rate in appealed patent cases.  If the Supreme Court ultimately determines that “de novo” review is improper, then the CAFC will have to give greater deference to the claim construction conclusions of the District Court, in deciding appeals. That, in turn, would substantially lower the chance of the CAFC reversing the District Court.  The case in which this issue raised to the Supreme Court is: Retractable Technologies, Inc. v. Becton, Dickinson and Co., Supreme Court docket No: 11-1154. The Supreme Court invited the Solicitor General to express the views of the United States in this case, at page 10 of document: http://www.supremecourt.gov/orders/courtorders/062912zr4f6k.pdf