“Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), instructs that the court, not the jury, decides the scope of a patent claim, through the claim-construction process. This is paramount because the patent claim’s scope defines the legal right to exclude and, consequentially, sets the boundary for the entire patent-infringement action, including claims, defenses, discovery, and admitted evidence.”
“Years of settled practice under Markman have led to the established practice that claims are construed early in the litigation so that plaintiffs and defendants alike will have a fair opportunity to develop evidence and present their respective cases. Because claim scope must be settled before parties develop their proofs, a late claim construction—announced after the evidentiary record has closed—demands notice and a fair chance to adjust. This case presents a stark depravation of due process stemming from the Federal Circuit’s increasing rudderless invocation of a standardless distinction between a ‘new’ claim construction, on one hand, and a so-called ‘clarification’ or ‘elaboration’ after trial. In this case, the post-trial, post-verdict ‘elaboration’ of two claim terms wiped out a $2.6-billion judgment of willful infringement without affording the patent owner an opportunity to respond to the new construction.”
“The question presented is:”
“Whether a court, without providing notice, may adopt a new, dispositive, materially different claim construction after the evidentiary record is closed, and without permitting supplemental briefing or a meaningful opportunity to be heard.”
