Restoring the Fact/Law Distinction in Patent Claim Construction

INTRODUCTION: Two decades ago, the Supreme Court sought to promote more effective, transparent patent litigation in Markman v. Westview Instruments1 by ruling that the construction of a patent, including terms of art within its claim, is exclusively within the province of the court. \u272 In so doing, the Court removed interpretation of patent claims from the black box of jury deliberations by holding that the Seventh Amendment right to a jury trial did not extend to patent claim construction. Failing to find clear historical evidence of how claim construction was handled in 179 1,\u27 the Court turned to the relative interpretive skills of judges and juries and the statutory policies that ought to be furthered by the allocation. 4 It concluded that federal district court judges were better equipped than juries to resolve the mixed fact/law controversies inherent in construing disputed patent claim terms,5 thereby leading to more effective and transparent patent litigation. Fully achieving the Court\u27s goal of more effective and transparent patent litigation, however, depends on district judges having the flexibility to learn pertinent facts, build a reviewable record, and explain the basis for their claim constructions