To Construe or Not to Construe: At the Interface between Claim Construction and Infringement in Patent Cases

This Article examines the blurring of this interface in both the procedural and substantive contexts. Part I discusses the background and modem legal framework for classifying claim construction as a pure question of law that is answered prior to and separate from the issue of infringement. Part II analyzes the claim construction-infringement boundary in a procedural context by examining the stages of a case at which these inquiries are typically performed and the degree to which courts construe claims in a vacuum, without reference to the accused product. This Part explains that courts are becoming increasingly accepting of and often prefer conducting claim construction in the context of the accused product, which blurs the procedural line between claim construction and infringement. Part III analyzes the claim construction-infringement boundary in the substantive context by examining the extent to which a court obliquely can apply the plain and ordinary meaning of claim terms to an accused product to assess infringement without further construing claim language to define claim scope. This Part discusses how the Federal Circuit\u27s 02 Micro International Ltd. v. Beyond Innovation Technology, Co. opinion biases the substantive boundary toward deciding liability as a legal question of claim construction. Finally, Part IV concludes with a series of strategic considerations for litigants in light of the conclusion that claim construction and infringement, in practice, lie on a continuum of uncertainty, rather than in separate inquires cleanly divided by a bright line