The Litigation Consulting Report

U.S. district court judges often lack the scientific or engineering background to fully understand the issues in highly technical patent cases without outside assistance. And ever since the Supreme Court’s Markman ruling in 1996 finding that claim construction – the interpretation of the words of a patent claim – is a task given over to the judge, it has been more important than ever for judges to get a solid working knowledge of the subject matter of a case. Judges now routinely convene so-called Markman hearings, also known as claim construction hearings, before trial to help them in their task of claim construction, which is at the core of many patent disputes. Many patent lawyers say the Markman hearing has become second in importance only to the trial itself. In a Markman hearing, judges must resolve all the disputes about the interpretation of a patent and must construe the claims for trial. The Markman hearing is therefore a key opportunity for both parties to guide the judge through the thicket of the evidence and to help him or her understand the case.

As the Washington Business Journal recently wrote, the International Trade Commission (ITC), once an obscure federal agency, has become the epicenter of high-end international patent law in recent years. Its docket is rapidly growing, and its cases can be worth sums in the hundreds of millions or billions of dollars.