September 2008, Volume 94, Issue 5
Patent Claim Construction
by Thomas Chen
94 Va. L. Rev. 1165 (2008)
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In 1998, the Federal Circuit decided Cybor Corp. v. FAS Technologies, holding that patent claim construction was a purely legal issue subject to de novo appellate review. This highly controversial decision has since become the focus of intense scrutiny and empirical studies exposing the problematic nature of de novo review. In November 2006, the Federal Circuit issued a divided opinion indicating its most significant movement towards reconsidering Cybor, prompting some observers to forecast the impending demise of de novo review.
This Note introduces Chevron deference as the proper standard of review for patent claim construction. A default rule adopting the narrowest reasonable claim interpretation would serve as a valuable information-forcing adjunct. Together, these rules would simultaneously address the inefficiency, indeterminacy, and information costs that currently plague the patent system. Ultimately, this proposal would achieve sweeping, multi-institutional patent reform from both ex ante and ex post perspectives.
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