Claim Construction

New Presentation: Has Phillips Changed Anything?

We've released a new presentation directed to our most recent results: the post-Phillips state of claim construction jurisprudence.

It's available as a PDF file.

File: [ PDF ]

Data Updated Through September 13, 2006

The database has been updated through September 13, 2006. It now contains all 749 claim construction opinions of the Federal Circuit since Markman I (April 1995).

Access the database by clcking here.

Slides from HILPA 2005

The slides Polk Wagner discussed at the October 7th HILPA meeting in Galveston, Texas can be downloaded by clicking here.

As with all of our material, feel free to use, as long as you provide attribution. (And we always appreciate knowing if and how you've made use of our work.)

Presentation Slides from 2005 IPO Meeting

The presentation slides from the talk that Polk Wagner gave at the 2005 IPO Annual Meeting in Seattle, Washington are available (in PowerPoint format) by clicking here.

As with all of our material, feel free to use, as long as you provide attribution. (And we always appreciate knowing if and how you've made use of our work.)

Data updated through September 10, 2005

The database has been updated through September 10, 2005.

Phillips issued

The Federal Circuit's en banc Phillips case was issued earlier this week.

The Claim Construction Project is on the job, and will be adapting some of our research methods and objectives in light of Phillips. Look for this space for additional details over the next weeks.

In the meantime, see Polk Wagner's blog (www.polkwagner.com) for commentary on the case.

Data Updated

Our database has been updated through early May 2005; the collection now consists of 636 opinions. See the search page for new results.

Look for the charts and graphs to be updated soon, as well as some analysis of the latest numbers.

New Presentation Available

We've posted a new version of the presentation of the project's results, findings, and implications. It's also available in an interactive slideshow format (Quicktime), here.

As with all of our material, feel free to use, as long as you provide attribution. (And we appreciate knowing if and how you've made use of our work.)

Observations from the Revised Data

A few thoughts about the results from the revised data:

Since the Phillips en banc order was issued on July 21, 2004, the court has decided 87% of claim construction cases using the procedural methodology. Compare this to the overall 65% procedural average. Note that the 'n' here is just 23 opinions, so it may well be an anomaly. Nonetheless, it will be interesting to see whether this is a harbinger of the resolution of the issues in Phillips.
Thus far in 2004, the court has issued 85 claim construction opinions, with 75% of them being procedural in nature.
Note that almost 30% of the claim construction cases at the Federal Circuit in 2004 have contained an “alternative” opinion - a concurrence or dissent.

As always, more to come. We encourage folks to use the search tool to develop their own insights.

Watch this space.

Graphs and Charts Updated

All the graphs and charts have been updated to December 1, 2004. Look for updates to the predictor tool soon.

Data Update: Database Complete through December 1, 2004

Your Claim Construction Project Coders have been hard at work, and have updated the dataset to December 1, 2004. The current database (searchable here) contains all Federal Circuit opinions with an observable claim construction analysis during the period from Markman II (April 1995) to December 1, 2004. That's 604 opinions.

Look for the charts, graphs, etc. to be updated soon to reflect the new data.

Federal Circuit to Pre-Announce Panels

The Federal Circuit, perhaps bowing to the reality of panel-dependency shown in our study of claim construction, has decided to pre-announce panel compositions. The court's statement:

The court has decided to post the composition of panels the Thursday prior to the week of oral argument as an experiment. This information will be found in the Pending Argument Calendar. Comments from the public are welcome.

Whether this is a good idea or not is a difficult question. On the plus side, it makes it far easier to prepare for oral argument (and thus probably leads to better, more effective arguments). A major con is that to the extent that it encourages last-minute settlement, the long-term effects will be to bias the jurisprudence in favor of the unpredictable panels -- which is unlikely to lead to more coherent and predictable jurisprudence.

New Search Tool

Be sure to check out our search tool, which allows for easy public access to the database. The search tool enables the selection of claim construction opinions using a wide variety of fields. (To give just one example, you can search for all opinions involving a particular judge, panel, or author.)

Dataset Updates: now 563 opinions; through June 1, 2004

In August 2004, we conpleted a major update of the dataset, reflecting opinions released through June 1, 2004. We are now on a contnual update cycle; look for new data to be released soon.

Amicus Brief in Phillips v AWH

Our director, Polk Wagner, recently filed (along with Joe Miller of the Lewis & Clark Law School) an amicus brief in Phillips v AWH Corp., No. 03-1269 (July 21, 2004) (Order), in response to the court's request for assistance in resolving issues surrounding claim construction. On July 21, 2004, the Federal Circuit took en banc the issue of claim construction methodology—just four months after the publication of our initial findings (documenting and statistically analyzing the deep divisions within the court on this issue).