The Federal Circuit has granted en banc review in Phillips v. AWH Corp. to decide the appropriate methodology for patent claim construction. This Note examines the different approaches taken by Federal Circuit panels for claim construction: the intrinsic/extrinsic dichotomy, holistic approach, and the "dictionary first" approach. This Note tests these approaches against the policies underlying patent law and concludes that both the holistic approach and the "dictionary first" approach fail to adequately further these policies.

Instead, this Note proposes a modified intrinsic/extrinsic dichotomy. The proposed approach for claim construction looks first to the intrinsic evidence. If the meaning of the disputed term in the claim is clear from the intrinsic evidence, the inquiry concludes. If the term is unclear from the intrinsic evidence, the court would then evaluate the plausibility of the interpretations put forward by each side by examining the supporting evidence introduced by the parties. If one interpretation is unsubstantiated by the evidence while the other is substantiated, the court should adopt the plausible, substantiated interpretation. If, however, both interpretations are equally plausible, the proposed methodology would have the court construe the term against the patentee. This Note argues that this modified intrinsic/extrinsic dichotomy best furthers the policies of certainty and public notice underlying patent law.

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