Claim Construction, Appeal, and the Predictability of Interpretive Regimes

Interpretation is central to patent law, because most adjudications require association of written claims with non-linguistic subject matter. By some accounts, the lack of predictability in the law of claim interpretation has reached crisis proportions, and has prompted calls for far-reaching changes in the way patent issues are adjudicated. However, the actual evidence that questions of interpretation are more problematic than other aspects of patent law is sparser than is commonly recognized. Moreover, while the controversy over claim interpretation centers around the predictability of interpretation between trial and appeal, what is important is to be able to predict outcomes before any trial at all. But if claim interpretation questions are unusually unstable on appeal, what explains the peculiar character of claim interpretation? Conventional explanations relying on the indeterminacy of the substantive legal regime, or the relative expertise of trial and appellate judges, are insufficient. Instead, interpretive questions may be unusually susceptible to cognitive effects arising from differences between trial and appeal processes with respect to information content and information order. If so, the paths to predictability in interpretation are radically different from those currently implemented by the Federal Circuit or proposed as future reforms