But the mortality rate of judges’ claims construction rulings
in patent cases, which are reviewed under the
de novo standard,
is extraordinarily high on appeal, with the Federal Circuit
reversing at least part of the judge’s ruling approximately 40
percent of the time. But not in Marshall. Despite handling
more than 200 patent cases between them at a time, Judges
Ward and Davis have
never been reversed by the Federal Circuit
— the closest either has come was a revision of one claim term
in one order by Judge Ward. This startling fact underscores the
expertise that the local judges have developed in these complex
cases. For better or worse, when the judge hands down his construction
of the terms in the patent, thus setting the metes and
bounds of the plaintiff ’s invention, the ruling is — at least thus
far — virtually bulletproof on appeal.
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