Calypso Wireless (fka CLYW)

[joe nobody]

Just some general info related to our situation and the appeals process within the federal circuit per a patent attorney.....link provided below


One hitch with this seemingly efficient process, however, has been the review, or appeals, process related to a district court’s determination of the meaning of the claim terms. Shortly after the Markman decision, the Court of Appeals for the Federal Circuit issued its en banc decision in Cybor Corp. v. FAS Technologies, Inc., in which the court held that it would review de novo claim construction determinations, and further that the court would not review such claim construction determinations until after a final order, i.e., summary judgment or judgment after trial, has been entered.3 In my experience, while the process of a Markman or claim construction hearing often helps to streamline a patent infringement case, if the parties then have to wait to appeal a possibly erroneous claim construction ruling until the district court enters a summary judgment determination or a judgment after trial, some level of efficiency is lost.

Add to that the fact that several studies, including an earlier study conducted by then Professor Kimberly Moore of George Mason University (now Justice Moore of the Federal Circuit) and a later study conducted by David Schwartz, Assistant Professor of Law at the John Marshall School of Law, suggest that of the cases on appeal for claim construction issues since the time of the Markman decision through about 2007, nearly 40% were found on appeal to have at least one claim term construed incorrectly. Wow, 40%—almost one-half of the cases on appeal had at least one claim term determined to have been construed incorrectly.4 It is safe to assume that at least a number of these cases had involved a trial at the district court level and may have been remanded back to the district court for further proceedings in light of the corrected claim construction. Perhaps not as efficient as we thought, right?5

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1145&context=iplr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Daverage%2520appeal%2520time%2520for%2520markman%2520ruling%26source%3Dweb%26cd%3D7%26ved%3D0CFUQFjAG%26url%3Dhttp%253A%252F%252Fscholarship.law.marquette.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1145%2526context%253Diplr%26ei%3D_3H3UM7gE468qQHYk4Aw%26usg%3DAFQjCNF7tE5yKAf-QV9vigtf9fZX3VBWrA#search=%22average%20appeal%20time%20markman%20ruling%22