This Article examines the Federal Circuit's review of claim constructions by lower tribunals to determine whether the Federal Circuit defers to lower court constructions or is making its own, independent determination as to the "correct" construction and ultimate result in the case. The data collected from 2010 to 2013 indicates that the Federal Circuit affirms about 75% of lower court claim interpretations. While this finding is itself surprising, even more surprising is that these reviews do not appear to be driven by deference. Instead, the Federal Circuit is less likely to correct constructions that resulted in a patentee loss below, and the court is more likely to reverse claim constructions that resulted in a patentee win below. And this difference is magnified in cases involving electronics, information technologies, and business methods, with such patentees faring even worse than others in claim construction appeals. These findings suggest that the Federal Circuit's review of claim interpretations is still truly de novo and performed to correct lower court decisions (a) where patentees win and (b) especially where patents covering electronics, information technologies, and business methods succeed.
Christopher A. Cotropia, Patent Claim Interpretation Review: Deference or Correction Driven?, 2014 BYU L. Rev. 1095 (2015).