Washington Journal of Law, Technology & Arts


The Federal Circuit’s Markman decision removed juries from the claim interpretation process, thereby revolutionizing patent law. Designed to provide greater certainty and predictability, Markman nevertheless produced unintended consequences, increasing ambiguity and complexity. By declaring claim interpretation an entirely legal issue, the Federal Circuit imposed intricate and even contradictory rules, many resulting from the Federal Circuit’s long insistence that no issues of fact existed, so that claim construction was entirely subject to de novo review. The uncertainty was compounded by rules focused on semantic quibbles unrelated to what was invented. Increased burdens and continuing uncertainty followed.

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