The Measure of the Doubt: Dissent, Indeterminacy, and Interpretation at the Federal Circuit

The law of patent claim interpretation articulated by the United States Court of Appeals for the Federal Circuit is commonly supposed to be markedly indeterminate, and to be responsible for a lack of certainty and predictability in patent litigation. But there has been no attempt to measure objectively the indeterminacy associated with patent claim interpretation, or, for that matter, of any other field of law. This Article shows that under appropriate conditions the indeterminacy of a legal regime may be measured empirically by the frequency of appellate dissents. Application of this method to the Federal Circuit\u27s jurisprudence demonstrates that while patent litigation as a whole is less determinate than other bodies of law overseen by the Federal Circuit, there is little or no evidence that claim interpretation is any more or less indeterminate than other aspects of patent law over time. Nor is the law of claim interpretation any less determinate than that of another interpretive regime, contract interpretation. When the indeterminacy of patent law is taken into account, the district courts perform as well, or better, than the specialized tribunals reviewed by the Federal Circuit. These findings call into question the notion that specialized trial courts are necessary to bring certainty or predictability to patent infringement litigation