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To Defer, or Not to Defer: That Is The Question (For Patent Claim Construction, at Least)



By Matthew B. McFarlane of Robins, Kaplan, Miller & Ciresi L.L.P.

Matthew B. McFarlane is a principal in the New York office of Robins, Kaplan, Miller & Ciresi L.L.P. His practice focus on intellectual property and patent litigation, and he represents a diverse client base that includes companies and individuals in the medical, biotechnology, pharmaceutical and chemical technology areas. He can be reached at mbmcfarlane@rkmc.com.

The exclusive right to make, use or sell an invention begins and ends with a patent’s claimsówords that lay out the precise boundaries of covered subject matter. During litigation, the district court hears evidence about the patent, its prosecution in the U.S. Patent & Trademark Office, and the understanding of skilled artisans in the field, and determines a definition for the words in a patent’s claims. This process is called claim construction.

Parties devote considerable resources to claim construction, because that outcome, in many cases, determines whether a particular accused product or process infringes a patent claim, or whether the claim validly complies with statutory requirements for patentability.

The Supreme Court recently heard oral argument in Teva Pharmaceuticals USA, Inc. v. Sandoz Inc. (No. 13-...

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