October 2005 Vol. 104 No. 1 THE REVIEW

The Changing Meaning of Patent Claim Terms

Mark A. Lemley

The claims of a patent are central to virtually every aspect of patent law. The claims define the scope of the invention, and their meaning therefore determines both whether a defendant’s product infringes a patent and whether the patent is valid. One of the most significant aspects of patent litigation is “claim construction,” the process of defining the words of the claim in other, theoretically clearer words. Courts construe the claims of the patent by starting with the plain meaning of their terms as they would be understood by a person having ordinary skill in the art, or PHOSITA. Claim construction occurs in every patent case during a “Markman hearing.” Indeed, claim construction is so important to patent litigation that once the court construes the claims, most patent cases settle, and those that do not are often decided on summary judgment. As Judge Rich succinctly put it, “the name of the game is the claim.”

   //  VIEW PDF
& Other Current Events

Foreword: What Books on Law Should Be

I have thought it might be useful to our profession, and appropriate to a foreword to a collection of...

A Pragmatic Republic, If You Can Keep It

Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law....

Classic Revisited – Frost for Lawyers: "The Best Thing That We're Put Here For's to See"

The Poetry of Robert Frost: The Collected Poems. Edited by Edward Connery Lathem....

Racial Templates

A Wicked War: Polk, Clay, Lincoln, and the 1846 U.S. Invasion of Mexico. By Amy S. Greenberg....

Book Notice - Some Kind of Judge: Henry Friendly and the Law of Federal Courts

Henry Friendly, Greatest Judge of His Era. By David M. Dorsen. Foreword by Richard A....
MAILING LIST
Sign Up to Join Our Mailing List