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(Message started by: Hipnikker on Aug 27th, 2007, 7:22pm)

Title: Law Review Article Question
Post by Hipnikker on Aug 27th, 2007, 7:22pm
I am considering writing a Law Review article which would basically argue for overturning Markman.  While I am still researching the relevant articles and substance on point, I am wondering if there is some substantive argument that blows my position off the map.

Anyway, my position is that a jury should be used at the trial court level to construe patent claims.  Furthermore, greater deference should be given to such findings.  Basically, the only questions that would be submitted to a jury would be those where the evidence leaves something to be desired with respect to claim interpretation.

I am wondering what people think?  Can anyone refer me to any articles have already taken my point of view.

What major obstacles are there to my point of view?

Title: Re: Law Review Article Question
Post by Bill Richards on Oct 7th, 2007, 2:19am
No specific articles, but, if I recall correctly, the concept behind the Markman hearing is that the court construes the meaning of the terms of a legal document (e.g., contract and patent). Since that concept is pretty solidly entrenched, you'll have to overcome that idea.

Title: Re: Law Review Article Question
Post by TataBoxInhibitor on Oct 7th, 2007, 8:47am
Are you pretty set on that topic?   Unless I read your question incorrectly, I am not sure that allowing a jury to construe claims is a good idea.  And arguing it may prove to be an excersize in futility.

Claim construction is a matter of law.  I think that is requires special training, practice etc.   It also gives a sense of uniformity to this as opposed to a jury.


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