Did Phillips Change Anything? [Updated Feb. 2008]
The Federal Circuit’s 2005 en banc decision in Phillips v. AWH represents that court’s effort to resolve problems with perhaps the most important doctrine in the patent law—claim construction. Building on our prior work in this area, we report the results of an empirical study evaluating the jurisprudence of claim construction at the Federal Circuit. We find little to suggest that the Phillips opinion has had any measurable effect on the law of claim construction. Indeed, we find that the open-ended nature of the Phillips opinion, and its failure to resolve the longstanding split in claim construction jurisprudence, has undermined the Federal Circuit’s efforts to develop a coherent and predictable jurisprudence.