Patent claim construction is a mess. The Federal Circuit’s failure to provide adequate guidance has created significant problems for the patent system. The problems with claim construction result from the Federal Circuit’s inability to resolve whether claim terms should be given (1) the general, acontextual meaning they would have to a skilled person in the field; (2) the specific meaning they have in the context of the patent; or (3) some combination of the two. The claim construction debate largely overlooks the generalist judges who must implement claim construction. This Article fills that gap, concluding that existing approaches are difficult, costly, and error prone for generalist judges because they force the judge to step into the shoes of a scientist. It is time to abandon the legal fiction that claims should be construed from the perspective of a skilled person in the field—instead, judges should construe claims from the perspective of an ordinary reader discerning meaning from the context of the patent. The ordinary reader standard is more familiar to generalist judges, easier and cheaper to apply, and less error prone. Perhaps surprisingly, it is also consistent with the nature of claim construction. Rather than eliminate technical context, an ordinary reader standard focuses on the technical context that was provided by the patentee, is publicly available to everyone, and by definition reflects the skill level, field, and time of the invention. And,rather than ignore the audience for patent claims, it provides a common ground for the varied consumers of modern patent claims: skilled people, business people, patent examiners, lawyers, and judges.
Greg Reilly, Judicial Capacities and Patent Claim Construction: An Ordinary Reader Standard, 20 Michigan Telecommunications and Technology Law Review 243-328 (2014).