A crucial part of a patent case involves the Markman hearing. There, the district judge listens to and sees evidence, PowerPoints, blow-ups, claim charts, and arguments that each side puts forward in hopes that Her Honor will choose their version of what the words of the patent claims mean.

You might wonder why they put so much effort into defining terms and phrases — or construing them, in Markman lingo — but you'll get over that if you take time to read the actual language of a patent.

Dense, turgid, looping, vague, arcane, and — with shocking frequency — brimming with typos and syntactical and punctuation errors.

After all that work and bother, the trial court judge issues a Markman order. This piece of prose becomes the Rosetta Stone for the case. "Means for rotating grooved metal object into solid material" becomes "screwdriver". That can save the finder of fact a lot of mental effort.

So you'd expect that the appeals court would see that the district judge likely had a better chance to get the Markman rulings right. He saw the Keynote presentation as the lawyers walked him through it. He handled the exemplar devices. He may even have talked with his own technical expert. How can an appeals court hope to do better than he?

The Federal Circuit chose not to defer to district judges on their Markman rulings in 1998. See Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448 (Fed. Cir. 1998) (en banc). Last week, the full court stuck by that choice. By a 6-4 vote — two of the 12 circuit judges recused themselves – the court ruled that "the principles of stare decisis" persuaded them to "confirm the Cybor standard of de novo review of claim construction, whereby the scope of the patent grant is reviewed as a matter of law." Lighting Ballast Control, LLC v. Philips Electronics N. Am. Corp., No 12-1014, slip op. at 7 (Fed. Cir. Feb. 21, 2014) (en banc).

The lack of deference to Markman orders helps explain why in 2013 the Federal Circuit reversed district court judgments 19 percent of the time vs. 11.3 percent by all other courts of appeals in "private civil" cases — a whopping 41 percent higher rate of reversal.

Blawgletter expects that the Supreme Court will take up the issue soon, maybe next Term. It should.

Bonus:    Gold Hat, in The Treasure of the Sierra Madre (1948), said "I don't have to show you any stinkin' bades."