Claim construction follows a well trodden path through a patent’s prosecution history, specification, and, most importantly, the language of the claims. Who knew that the process could also implicate the ongoing debate over the fairness and stability of the current patent regime?
Consider, for example, a recent dissent authored by Federal Circuit Senior Judge Plager in a case affirming District of Delaware Magistrate Judge Mary Pat Thynge:
“Fair notice to the public, and to competitors, of what is claimed depends on our holding patentees to what they claim, not to what they might have claimed. It is the responsibility of those who seek the benefits of the patent system to draft claims that are clear and understandable. When courts fail to enforce that responsibility in a meaningful way they inevitably contribute an additional element of indeterminacy to the system. Sometimes being kind to a party results in being unkind to the larger interests of the society.”