Discord As To When District Courts Must Resolve Claim Scope Disputes

In July 2017, the US Court of Appeals for the Federal Circuit issued a non-precedential decision reversing the district court for failing to provide constructions for the claim terms "replacement telephone number," "modify caller identification data" and "outbound call." NobelBiz, Inc. v. Global Connect, L.L.C., Case No. 701 Fed. Appx. 994 (Fed. Cir., July 19, 2017) (Hughes, J) (Newman, J, dissenting). The majority chastised the district court for giving these terms their plain and ordinary meaning (and in doing so allowing the parties' experts to make arguments to the jury about the meaning of the claims). Judge Newman penned a powerful dissent pointing out precedent instructing that where a term is used in common parlance and does not have special meaning in the art, assigning a claim construction of plain and ordinary meaning is appropriate. This dissent led to an en banc poll as to whether the decision should be examined en banc.