Read our latest coverage of patent law and intellectual property issues, from Silicon Valley to the U.S. Supreme Court.
A recent study by David Schwartz, an assistant professor at The John Marshall Law School, found that over the last decade, 38 percent of the cases had at least one term found on appeal to have been wrongly construed. He also found that 30 percent of the cases had to be reversed or vacated because of an erroneous claim construction, according to the results of the study reported on the Patently-O blog.
For some lawyers, the high reversal rate is worrisome.
“It’s higher than everyone would like,” said Michael Barclay, an IP lawyer at Wilson Sonsini Goodrich & Rosati. “You can’t advise your clients on what’s going to happen.”
One fix for the issue was proposed in the patent reform bill that is currently stalled in the Senate. It would change the rules to permit an interlocutory appeal to the Federal Circuit after the hearing on claims construction instead of waiting till the trial is finished.
Proponents said the change would cut out all the time wasted on trials that ultimately get overturned by the appeals court. But opponents, including Federal Circuit Chief Judge Paul Michel, said that the change would clog up the appeals court and cause even more delays in patent cases.
In the Finisar case, a Texas jury originally awarded the tech company $78.9 million in damages after it found that DirecTV willfully infringed on a patent involving methods for transmitting and broadcasting digital information. U.S. District Judge Ron Clark denied Finisar’s request for an injunction but awarded $25 million in enhanced damages. DirecTV was also on the hook for prejudgment interest, post-judgment interest and a compulsory license.
The appellate panel vacated the verdict, ruled that the alleged infringement wasn’t willful, and invalidated one of the seven patent claims in question.
DirecTV’s appeal had challenged the construction of two terms in the district court’s claim construction as too broad. The appeals court agreed, though it ruled that only one of the misinterpretations was harmful.
