Tonight, I suggest reading "Fuzzy" Software Patent Boundaries and High Claim Construction Reversal in the Stanford Technology Law Review.
Here is the author's summary:
"Bessen and Meurer theorize that a breakdown in notice of patent boundaries caused the patent litigation surge of the 1990s. They argue that a prime source of this breakdown was the proliferation of software patents with particularly uncertain scope. In this Article I seek evidence that software patent scope is more uncertain by extending the empirical literature on claim construction reversal rates to determine whether the Federal Circuit has been more likely to find error in district court construction of software patents. Not only do I find that it has, but since 2002 software patents account for 40% of the difference between the Federal Circuit’s high claim construction reversal rate and its lower average reversal rate on all other patent issues. These results are cause for optimism because, in general, the application of existing claim construction law has been more predictable than many have feared. However, that optimism does not extend to software claim construction, which is highly unpredictable."
In my view, the article supports that one might reasonably appeal to the Federal Circuit a software patent case lost on claim construction since you have a 40% chance of reversal. However, the Federal Circuit's 40% reversal rate does not establish the software patent owner and prospective defendant disagreed regarding claim scope leading to a litigation surge in the 1990's. I think it only says why we had a lot of appeals to the Federal Circuit. Moreover, should anyone care about a litigation surge in the 1990's-- more than 15 years ago-- given the big decrease in patent litigation in recent years?
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