SEPTEMBER 2008
How to achieve success at Markman
The pre-trial Markman hearing that is standard in US patent infringement cases can provide parties the opportunity to bypass expensive litigation. Andrew Piatnicia explains how to maximise the possibilities
| One-minute read |
| Since the seminal 1996 Federal Circuit case Markman v Westview Instruments, patent infringement suits in the US have included a pre-trial claim construction hearing, commonly known as a Markman hearing. During this process, the judge determines the meaning of key patent claim terms based on evidence presented by both parties. The Markman hearing can be capitalised upon through a concise and focused approach, which may include conducting early analysis of claim terms, limiting the number of claim terms addressed during the hearing and exposing contradictions in claim construction during deposition. If the Markman hearing is handled skilfully, a party can avoid trial altogether. |
In patent litigation, the claim construction hearing, or Markman hearing, as it is commonly called, is perhaps the most important pre-trial event. The term Markman hearing came into use after the 1996 opinion by the US Court of Appeals for the Federal Circuit in Markman v Westview Instruments. There, the Federal Circuit held that judges, rather than juries, should determine the meaning of patent claim terms, since patents are written instruments and judges by their training and practice are best suited to construe written instruments.
The rest of this article is available to subscribers only. Subscribe today for full access to this article.
Alternatively take a free trial, giving you access to the current issue's contents*
If you are already a subscriber, please log in below to access the rest of this article.
*excludes some surveys and articles.