Patent Claim Construction

Most patent cases have a hearing, known as a Markman, which the Court uses to determine the proper scope and interpretations of disputed terms in a patent.   The Markman hearing, which sometimes comes very early in the discovery phase, but can also occur quite late (as determined by each judge on an individual basis) sets the tone for the remainder of the lawsuit.

Both sides are given the opportunity to identifyterms in the claims of the  patent that they feel need a judge's interpretation.   Both sides fully brief their position on the term's definition, these definitions gleaned from such things as the ordinary meaning of the words in the claim, drawings, other claims, the patent specification and the prosecution (file history) of the patent.  Besides offering the Court their own definitions, each party also has an opportunity to counter the position offered by the other side.

After the briefing concludes, most judges have a hearing on the disputed terms.   While every judge has his or her own rules about the hearing, most will allow both sides to put on a presentation of facts to attempt to convince the judge to adopt a particular definition.   Many judges will also use the Markman hearing as a way to gain familiarity with the technology described in the patent.    Some judges will allow expert testimony, if necessary, to be presented at a Markman hearing.

Judges do not generally rule on the terms immediately at the conclusion of the hearing, but instead issue a written ruling at some point later.  While judges will often adopt the proposed definition of either side on each particular term, they are in no way limited by those definitions.  Instead, judges can choose to draft their own definitions.  They can also decline to define a term if they feel that no definition is necessary.