Teva for Two: Federal Circuit Doubles Up On De Novo Review

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Teva for Two: Federal Circuit Doubles Up On De Novo Review


In Teva Pharmaceuticals v. Sandoz, the Supreme Court said that in patent cases, like any other civil case, the court of appeals must show deference to the trial court’s findings of fact, even if those findings relate to the legal issue of the proper construction of claim language in a patent. In reporting on that opinion, we noted that it remains to be seen what practical difference the Supreme Court’s pronouncement would make.

It’s early days, but the Federal Circuit has sidestepped Teva in the two cases in which it has cited that opinion. In In re Papst Licensing Digital Camera Patent Litigation, the Federal Circuit declined to apply Teva, writing, “In this case, we review the district court’s claim constructions de novo, because intrinsic evidence fully determines the proper constructions.”

And in Lexington Luminance v. Amazon.com, the Federal Circuit repeated the same maneuver: “In this case, we review the district court’s claim constructions de novo, because the intrinsic record fully determines the proper constructions and the district court’s constructions were not based on expert testimony.”

While two opinions certainly do not make a trend, they may suggest an approach that leaves Teva out of play in any case in which the court look first to the intrinsic record (patent claims, specification, and prosecution history), and only then to Teva if it has no choice but to look further afield.

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