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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

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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