On February 25, 2010, the United States Court of Appeals for the Federal Circuit decided Trading Technologies International, Inc. v. ESpeed, Inc., No. 04-CV-5312 (Fed. Cir. Feb. 25, 2010). The ruling contains language from soon-to-be Chief Judge Rader questioning the continued viability and utility of the de novo standard of review for claim construction. Id., slip op. at 13 ("Despite the Supreme Court's emphasis on the trial court's central role for claim construction, including the evaluation of expert testimony, this court may not give any deference to the trial court's factual decisions underlying its claim construction. This court's prior en banc decision requires a review of the district court's claim construction without the slightest iota of deference.")

In addition, Judge Ron Clark of the Eastern District of Texas, an important patent infringement venue, sitting in the Federal Circuit Court of Appeals by designation, wrote a concurrence lamenting the lack of appellate deference given district court claim construction rulings. Id. (Clark, J., concurring) ("I write separately to respectfully suggest that the current de novo standard of review for claim construction may result in the unintended consequences of discouraging settlement, encouraging appeals, and, in some cases, multiplying the proceedings.")

Any elevation of the standard of review would represent a sea change of incalculable practical significance to the conduct of patent litigation at the district court level. It would require an en banc decision to overturn the current state of the law enunciated in Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448 (Fed. Cir. 1998) (en banc), to accomplish the change, but such a change may be on the immediate horizon. A well known magazine is about to publish an article by Kilpatrick Stockton’s Fredrick Whitmer that argues that the de novo standard is not justified by law or logic. Kilpatrick Stockton will keep you posted.