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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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