November 2008 Vol. 107 No. 2 THE REVIEW

Practice Makes Perfect? An Empirical Study of Claim Construction Reversal Rates in Patent Cases

David L. Schwartz

This Article examines whether U.S. district court judges improve their skills at patent claim construction with experience, including the experience of having their own cases reviewed by the Court of Appeals for the Federal Circuit. In theory, higher courts teach doctrine to lower courts via judicial decisions, and lower courts learn from these decisions. This Article tests the teaching-and-learning premise on the issue of claim construction in the realities of patent litigation. While others have shown that the Federal Circuit reverses a large percentage of lower court claim constructions, no one has analyzed whether judges with more claim construction appeal experience fare better on subsequent appeals. Surprisingly, the data do not reveal any evidence that district court judges learn from prior appeals of their rulings. There is no suggestion of a significant relationship between experience and performance. The lack of evidence that Federal Circuit review aids district court judges is disconcerting. The Article explores three possible explanations for the lack of evidence: (1) that the nature of claim construction is indeterminate; (2) that district court judges are incapable of or not interested in learning how to perform claim construction; and (3) that Federal Circuit decisions do a poor job of teaching district court judges how to construe claims. These results shed critical light on the functioning of the patent system. Moreover, the results are relevant to a broader understanding of the relationship between higher and lower courts in general.

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