Judge v Jury
1.    De Novo: Court gets to construe claims reviewed de novo, so fed cir doesn’t have to refer to what district court did.
a.    Juries do not get to construe the claim.
b.    Why not?
(A)    For analysis, much turns on what person skilled in art understands. Both sides bring their skilled in art people, and judges don’t know much so they’re weighing testimony from competitors.
(B)    If that is true, judge is weighing testimony, sounds like classic jury question – evaluate somebody for credibility. judge can’t possibly know what experts know. Odd this winds up going to judge as policy matter (though it makes sense historically).
2.    What’s left for the jury?
a.    Juries still get to match construed claim to accused device.
b.    Non-obviousness analysis left to jury
3.    Why is Markman an important decision?
a.    Juries vs judges do handle things differently. Lemelson would go after foreign patent holders, play off juries bias—see, I’m a nice American small inventor.
b.    Drastically changed flow of patent litigation: Most courts do a summary judgment style Markman hearing where they sit down and focus on construing the claim. Lots of court open up patent lit with few days exclusively on how do we construe claim, judge rules, and that’s the framework for rest of case.
(A)    Downside
(1)    When you have a claim construction hearing upfront, court may miss out on valuable information.
(2)    If you do M hearing at end, people testifying on stand both about what claim means and their interpretation of matching. Judge might be slamming one set of experts and supporting another, confuse jury, use their analysis for comparison.
(B)    Upside
(1)    Many parties settle after the hearing.
(2)    Makes it easier to have direct appeal: With M hearing, appeal that, then let jury hear evidence, rather than have to do entirely new trial.