Changing Role for the Markman Hearing: In Light of Festo IX, Markman Hearings Could become M-F-G Hearings Which Are Longer, More Complex and Ripe for Appeal, A
O'Shea, Michael A.
INTRODUCTION|Eight years ago, in Markman v. Westview Instruments, Inc., the United States Supreme Court held that claim construction was a matter of law for a judge, not a jury, to decide. Although the Supreme Court did not mandate how or when a judge was to make this determination, the Markman Hearing - a pre-trial proceeding focused entirely on claim construction - quickly became common practice in district courts throughout the United States. |The significance of Markman to patent litigation cannot be underestimated. The most hotly contested issue in virtually every patent litigation - claim construction - was removed from the jury and given to the judge. The "certainty" desired by the Supreme Court minimized the risk that a jury would misconstrue the claims, but also shifted the balance so significantly that the judge's Markman Hearing decision can effectively determine the outcome of the trial before it has even begun.|To be sure, problems remain in the post-Markman world. For example, (1) a high reversal rate of claim construction decisions by the Court of Appeals for the Federal Circuit results in uncertainty even after trial, (2) litigating patents continues to be expensive, and (3) court resources are routinely wasted by empanelling juries only to re-try the same case in the future....
37 Creighton L. Rev. 843 (2003-2004)
Creighton University School of Law