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Amici Curiae to Federal Circuit: Patent Specification and Prosecution History, Rather than Dictionaries, Should Serve as the Primary Source for Claim Interpretation

On July 21, 2004, the Federal Circuit issued an order granting a petition to rehear en banc the appeal in Phillips v. AWH. The court "determined to hear this case en banc in order to resolve issues concerning the construction of patent claims," and invited the parties as well as amicus curiae to submit briefs on seven very specific questions relating to claim construction methodology and review on appeal. The response to the court's call for amicus briefs was indicative of the keen interest in the bar on these issues. Thirty-three responses were filed, with the majority of them urging the court to interpret claim terms by looking primarily to the patentee's use of the terms in the specification and prosecution history and secondarily to dictionaries ...

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