I. The Finality Of A Markman Determination
A. Introduction
The claim construction adopted by the court, as well as that urged by counsel, will influence the litigation as it proceeds through pre-trial to trial and any appeal. The interpretation of claim language in one action might very well have a preclusive effect on related, as well as future litigation. This is particularly important where multiple law suits over the same patent are anticipated. It is vital for trial counsel to prepare for an unexpected adverse claim construction ruling while effectively advocating the client’s best position.
In 1999, the American Bar Association's Section of Intellectual Property Law conducted a survey of its members, asking them to report on their experiences regarding the timing and practices adopted by various courts to construe patent claims. American Bar Association Section of Intellectual Property Law 1999 Markman Survey, IPL Newsletter, Spring 2000. As reported, 57.8% of the
