Revising Markman: A Procedural Reform to Patent Litigation

This Note presents a procedural reform to the current process of patent litigation in the United States, specifically focusing on claim construction and appellate review. This Note owes a great deal to John F. Duffy and his influential piece, On Improving the Legal Process of Claim Interpretation: Administrative Alternatives. Mr. Duffy’s article suggested how administrative law principles could be incorporated into patent law to reduce inefficiency. At its core, this Note operationalizes and expands on the concepts of Mr. Duffy’s article by using the new programs from the America Invents Act,2 which was signed into law twelve years after Mr. Duffy’s article was published. For a more in-depth analysis of the rationale for applying administrative law principles to patent law, please see his work. This Note begins by providing a brief background on the basics of patent law, patent litigation in the United States, the current problems facing our patent system, as well as background on relevant administrative law principles and how these principles can be integrated into patent law. Building off this foundation, the Note will outline the objectives of the proposed procedural reform, outline the proposal itself, and discuss implementation concerns related to the proposal.