.....from ronran (not at all my friend, but this is a good job)
I'm not exactly sure why this keeps occurring, but I had several contacts over the weekend from folks who still don't seem to understand the "de novo" versus "manifest error" issue that is presented by the recent Teva Pharamaceuticals case in the U. S. Supreme Court and how it could affect our HTC case. Perhaps the fact that the decision is now pending in the Court is what has prompted additional inquiry, so I'll take another stab at it.
First, as I've posted on several other occasions, the standard that is in use right now for appellate review of claims construction is the de novo standard. So, if the SCt rules that this is the appropriate standard, nothing will have changed. Conversely, if the SCt decides that the de novo standard is not correct, then it will likely revert to the "manifest error" standard, under which the rulings in the lower court must be deemed "clearly wrong". The manifest error standard is more favorable to whichever side prevailed on claims construction in the lower court (which would be us in our HTC case).
It seems that some folks are getting confused as to the issues of claims construction versus infringement. Claims construction is decided by the judge as a result of the Markman hearing process, and, at least to date, appellate review of same, as explained above, has been on the "de novo" standard. Conversely, in a jury trial, the issue of infringement is decided by the jury, and the standard of review has always been "manifest error" --- the Teva case has nothing to do with that in a direct sense.
Neverthless, the jury decides whether infringement has occurred based on the claims constructions provided by the judge. Stated another way, the claims constructions provided by the judge are the foundation for the determination of infringment by the jury. Therefore, if the claims constructions by the judge in the trial court are changed by the Federal Circuit on appeal, there may no longer be a satisfactory basis for the jury's finding of infringement. In that scenario, even the "manifest error" standard may not assist in keeping the jury verdict of infringement in place, since the foundation (the interpretation of the claims) has been changed.
The bottom line for the HTC appeal is that, if the Federal Circuit does not change Judge Grewal's claims constructions, then the jury verdict of infringement is unlikely to be reversed since the "manifest error" standard will be used for that part of the review. Conversely, if the Federal Circuit does change Judge Grewal's claims constructions, then the jury's determination of infringement becomes uncertain, because the foundation will have been changed.
Should the SCt in Teva uphold the de novo standard, then nothing will change in that context. On the other hand, if there is a change imposed by Teva and the standard is changed to "manifest error" for claims construction, and further assuming that this occurs in time to affect our HTC case and is deemed applicable to pending cases (issues on which much more could be written), then this would likely be favorable to us since we were the winner on claims construction in the trial court.
Hope this helps.
