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Article
Reversing the Reversal Rate: Using Real Property Principles to Guide Federal Circuit Patent Jurisprudence
Fordham Intellectual Property, Media & Entertainment Law Journal (2007)
  • Paul M Schoenhard
Abstract

This Article responds to a pervasive perception that the rate at which the Federal Circuit reverses lower court decisions is inordinately high and to the corresponding outcry for specialized patent judges at the district court level. First, the Author explains that existing district court judges fare no worse on appeal in patent cases generally than in other areas of their dockets. Then, acknowledging that a higher reversal rate does exist within the narrow realm of patent claim construction, the Author questions the current treatment of claim construction determinations on appeal. With reference to the law of real property, the Author argues that explicit consideration of intent and other underlying facts during the process of patent claim construction would require the application of appropriate deferential standards on appeal, thus lowering the rate at which lower court determinations are reversed.

Keywords
  • patent,
  • patent reform,
  • intellectual property
Disciplines
Publication Date
2007
Citation Information
Paul M Schoenhard. "Reversing the Reversal Rate: Using Real Property Principles to Guide Federal Circuit Patent Jurisprudence" Fordham Intellectual Property, Media & Entertainment Law Journal Vol. 17 (2007)
Available at: http://works.bepress.com/paul_schoenhard/5/