District court judges get no respectat least when it comes to patent claim construction. Nine years ago in Markman v. Westview Instruments, Inc., the U.S. Court of Appeals for the Federal Circuit ruled that interpreting claims was an issue of law, not fact, and therefore something they could review from scratch, or de novo. It didn’t matter how much time trial judges spent deciphering claimsin sessions that came to be known as Markman hearingsnor how many science tutorials they were offered. The district court’s claim construction would be treated by the appellate judges with as much deference as, say, Kevin Federline has among rock stars. And, among the patent bar, the appellate court’s policy won about as much respect.
Among those saying that the Federal Circuit has it all wrong is Amgen Inc., the biotechnology giant based in Thousand Oaks, California. Amgen is using a case that has been bouncing around the courts for the past decade to challenge the Federal Circuit’s practice. In March the company petitioned the U.S. Supreme Court for a writ of certoriari in Amgen Inc. v. Hoechst Marion Roussel, Inc. (the defendant is now part of Sanofi-Aventis). While Amgen has already scored a big win in the case, with two patents for its blockbuster anemia drug, Epogen, ruled valid and infringed, the battle now is over a third patent in the case, which has proved more problematic for the company. Twice, chief judge William Young of the federal district court has defined a key claim narrowlyfavorable to Amgen, as the interpretation makes it less likely that prior art would knock out the patent. Twice, the Federal Circuit has reinterpreted the claim more broadly, and sent the case back to Boston.
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