Federal Circuit accepts rare interlocutory claim construction appeal
February 14, 2007
Today the Federal Circuit accepted an interlocutory appeal from a district court relating to patent claim construction. Because of the rarity of such a decision by the Federal Circuit, the court felt compelled to explain, in a precedential order, why it was accepting the order, and so members of the bar wouldn't get their hopes up that the court will be accepting more interlocutory appeals on claim construction issues. More details of the reason behind the court's decision to grant the appeal after the jump.The parties already had two cases on appeal before the Federal Circuit seeking review of the lower court's denial of a preliminary injunction. In the context of the preliminary injunction, the district court performed a preliminary claim construction analysis. After the appeals were filed, the district court, based on a more complete record (which included the prosecution history), revised its earlier claim construction. This was the reason the court permitted the appeal. The decision currently on appeal was based on a claim construction that the lower court has now revised. As a result, if the Federal Circuit did not permit the interlocutory appeal, the court would be ruling on the validity of a claim construction that the lower court has already decided was in error. Thus, in order to proceed on the complete record, the court decided to allow the additional appeal, and consolidated oral argument in each of the appeals. So, while the Federal Circuit will, in rare cases grant interlocutory appeals on claim construction, those involved in patent cases should not expect such appeals to be granted. To read the full text of the order in Regents of the Univ. of Cal. v. Dako N. Am., Inc., click here.
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