Pre-Markman Reversal Rates

David L. Schwartz, IIT Chicago-Kent College of Law


The decisions in Markman v. Westview Instruments by the U.S. Court of Appeals for the Federal Circuit and the Supreme Court shifted the responsibility for construing patent claims from jury to judge, and the Federal Circuit’s decision in Cybor Corp. v. FAS Technologies, Inc., adopted a de novo standard of review on appeal. These decisions were motivated in part to bring stability, predictability, and transparency to the claim construction process. The Federal Circuit’s reversal rate, which has hovered between 20 and 45 percent, has prompted calls for significant changes. These proposals are premised on the notion that the claim construction reversal rate is unduly high because of fundamental features of the appellate review process, such as the standard of review, the scope of judicial authority over claim interpretation, and the canons of claim interpretation. This Article, which is part of a symposium on the "Federal Circuit as an Institution," provides data from all Federal Circuit opinions from 1991 through 2008 to determine whether changes in the procedure for construing and reviewing claims has changed the reversal rate.