PROCEDURAL UNCERTAINITY IN MARKMAN HEARINGS
1033 patent claims, including terms of art used therein, is a question of law to be decided by the court, not one of fact reserved for the jury.9 The decision was based on the concept that patents are legal documents similar to contracts, which have traditionally been interpreted by the court.10 Guided by that rationale, the Supreme Court felt that judges were better suited to construe claim language, because they have been trained to interpret legal documents.11 Finally, the Court felt that its holding in Markman would foster intrajurisdictional uniformity in patent infringement suits.
The holding in
Markman inspired the creation of the "Markman hearing," a judicial proceeding dedicated solely to claim construction.13 However, with the creation of this new proceeding came many issues that were not commented on, nor decided in Markman.14 One of the main ramifications of the Markman decision was that claim construction, now done as a matter of law by trial courts, would be reviewed de novo by the Federal Circuit on appeal.15 The de novo standard of review had the potential to promote an increase in the number of reversals.16 Courts and legal commentators have taken notice of the significant reversal rate of Markman orders by the Federal
Circuit.17 One study done in 1997 reported that the Federal Circuit reversed 38.3% of cases involving claim construction.
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