9 Chi.-Kent J. Intell. Prop. 1 (2010)

handle is hein.journals/jointpro9 and id is 1 raw text is: Copyright  2010, Chicago-Kent Journal of Intellectual Property

A Patent Panacea?
THE PROMISE OF CORBINIZED CLAIM CONSTRUCTION
Jonathan L. Moore*
A patent's claims define the scope of a patent-holder's right to exclude
others. Because patent infringement actions often hinge on how a court construes
claim terms, the interpretative approach that a court uses has a significant effect
on the scope ofpatent rights.
This article examines claim construction through the lens of contract law.
In theory, the Federal Circuit has explicitly rejected the application of contract
interpretation principles to claim construction, despite historical acceptance of
the patent-contract analogy. In practice, however, the Federal Circuit applies the
theory of contract interpretation espoused by Samuel Williston, a theory that
focuses on the text of the document itself
Unfortunately, this approach has resulted in a claim construction
jurisprudence that lacks certainty and divides the judiciary. Accordingly, this
article argues that courts should construe patent claims by following the theory of
contract interpretation outlined by Williston's rival, Arthur Corbin-a theory that
values substance over form. If applied in the patent context, this theory would
expand the quality of sources used to interpret a claim and mitigate the problems
spawned by the use of a Willistonian approach. In light of these advantages,
Corbinized claim construction offers a doctrinal solution to the problems
plaguing the Federal Circuit's current claim construction jurisprudence.
Table of Contents
Introduction ......................................................................................................  2
I.     Background    ..........................................................................................  5
A.     The Role of Claims and the Significance of Claim Construction ... 5
B.     The Federal Circuit's Current Claim Construction Jurisprudence
.................................................................................................. . .  1 0
C.     Patents  and  Contracts ................................................................  14
1.     The Patent-Contract Analogy ....................................... 14
2.     Rejection by the Federal Circuit .................................... 16
II.    Claim Construction and Williston's Theory of Contract
Interpretation  ......................................................................................  17
A.      Williston's Approach to Contract Interpretation ....................... 17
* Associate, Bowman and Brooke LLP, Richmond, Virginia. J.D., 2009, University of Richmond
School of Law, summa cum laude. The author would like to thank Professor James Gibson for his
insight, guidance, and suggestions on this article.

9 Chi.-Kent J. Intell. Prop. 1

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