A Statistical Analysis of Procedural/Holistic Claim Construction Methodoligies at the Federal Circuit
According an article by to R. Polk Wagner and Lee Petherbridge, the Federal Circuit is sharply divided between two basic methodological approaches to claim construction, each of which leads to distinct results. They report that disputes among Federal Circuit judges concerning claim construction (i.e., where there was a dissent or concurring opinion disputing the majority's claim construction) tracked this distinction 95% of the time in the data set.
The "procedural" approach starts with a general presumption in favor of the ordinarily understood meaning of claim language, typically drawn from a relevant dictionary, reference works, or common usage. It then follows a predetermined path of analysis, wherein any suggested alteration from the ordinary meaning must be accompanied bysignificant proof that such an alteration is required under the circumstances.
The "holistic" methodology, on the other hand, adopts a distinctly more free-form approach, seeking the correct meaning according to the particular circumstances presented, rather than following the formal steps and hierarchy of information sources seen in the procedural method. The holistic approach is significantly more relaxed than the procedural method in moving away from the abstracted "ordinary meaning" of a term in favor of a more localized understanding.
The authors conclude that the CAFC used a procedural methodological approach in 63.1% of the decisions between April 1996 to November 2002 and a "holistic" methodological approach in the remaining 36.9%. Furthermore, as shown below, during this period, the procedural methodological approach became more prevalent.
They attribute this trend to a substantial increase in authorship activity among judges whose statistical profile indicates a strong preference for the procedural methodological related to the addition of new judges to the Federal Circuit in 2000.
"Claim construction analysis at the Federal Circuit is clearly affected by the composition of the panel that hears and decides the case," they write. So much so that the authors have developed "The Federal Circuit Predictor" tool which upon entering the identity of the three-judge panel will return the (statistically) most likely methodological form of claim construction opinion that the panel will issue. Here is a quick summary of the "holistic probability for each Federal Circuit Judge:
Dyk 20.3%
Clevenger 26.5%
Linn 29.0%
Prost 33.7%
Rader 38.1%
Schall 39.0%
Gajarsa 42.7%
Rich 43.0%
Mayer 45.9%
Michel 49.4%
Newman 53.9%
Lourie 59.0%
Bryson 64.3%
The "procedural" approach starts with a general presumption in favor of the ordinarily understood meaning of claim language, typically drawn from a relevant dictionary, reference works, or common usage. It then follows a predetermined path of analysis, wherein any suggested alteration from the ordinary meaning must be accompanied bysignificant proof that such an alteration is required under the circumstances.
The "holistic" methodology, on the other hand, adopts a distinctly more free-form approach, seeking the correct meaning according to the particular circumstances presented, rather than following the formal steps and hierarchy of information sources seen in the procedural method. The holistic approach is significantly more relaxed than the procedural method in moving away from the abstracted "ordinary meaning" of a term in favor of a more localized understanding.
The authors conclude that the CAFC used a procedural methodological approach in 63.1% of the decisions between April 1996 to November 2002 and a "holistic" methodological approach in the remaining 36.9%. Furthermore, as shown below, during this period, the procedural methodological approach became more prevalent.
They attribute this trend to a substantial increase in authorship activity among judges whose statistical profile indicates a strong preference for the procedural methodological related to the addition of new judges to the Federal Circuit in 2000.
"Claim construction analysis at the Federal Circuit is clearly affected by the composition of the panel that hears and decides the case," they write. So much so that the authors have developed "The Federal Circuit Predictor" tool which upon entering the identity of the three-judge panel will return the (statistically) most likely methodological form of claim construction opinion that the panel will issue. Here is a quick summary of the "holistic probability for each Federal Circuit Judge:
Dyk 20.3%
Clevenger 26.5%
Linn 29.0%
Prost 33.7%
Rader 38.1%
Schall 39.0%
Gajarsa 42.7%
Rich 43.0%
Mayer 45.9%
Michel 49.4%
Newman 53.9%
Lourie 59.0%
Bryson 64.3%
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