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Nearly 20 years ago, the Supreme Court (in Markman v. Westview Instruments) considered whether the construction of a patent claim during litigation is a matter of law reserved entirely for a federal court judge, or subject to a Seventh Amendment guarantee that a jury undertake that exercise. The Court unanimously held “that the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” District courts have followed that holding by conducting hearings (in the absence of juries) in which the litigants may present factual evidence and expert testimony, and weighing that evidence in view of the litigants’ arguments before construing claims for trial of infringement and invalidity.

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