Dueling Experts

In Kara Technology, Inc. v. Stamps.com, the panel reviewing the district court judgment was faced with reviewing a district court judge’s claim construction.  During the district court’s claim construction hearing, evidence from dueling expert witnesses was offered.  Judge Moore noted that the outcome of the review of the district court’s claim construction might differ depending on whether the panel reviewed the claim construction (1) de novo or (2) with deference to the district court judge’s evaluation of the expert evidence.  Judge Moore inquired of counsel for the defendant-appellee whether the court should revisit its en banc decision in Cybor v. FAS Technologies, Inc.    [Listen]  In Cybor, the Federal Circuit held that the court reviewed claim construction de novo including underlying issues of fact.

You may recall Judge Mayer’s dissent in the Phillips v. AWH Corp. case in which he commented:

Until the court is willing to reconsider its holdings in Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed.Cir.1995) (en banc), aff’d on other grounds, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), and Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed.Cir.1998) (en banc), that claim construction is a pure question of law subject to de novo review in this court, any attempt to refine the process is futile. Nearly a decade of confusion has resulted from the fiction that claim construction is a matter of law, when it is obvious that it depends on underlying factual determinations which, like all factual questions if disputed, are the province of the trial court, reviewable on appeal for clear error. To pretend otherwise inspires cynicism. Therefore, and because I am convinced that shuffling our current precedent merely continues a charade, I dissent from the en banc order.


On another note, it was interesting to note that Judge Moore and her clerks apparently can communicate with one another electronically during oral arguments.  [Listen]

You can listen to the entire oral argument [Here].

You can read the panel’s opinion in Kara Technology, Inc. v. Stamps.com [Here].

You can read the en banc opinion in Cybor [Here].

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