supposedly instituted via the Cybor and Markman II holdings.
between Markman II and Cybor the reversal rate rose to 26.2%; (78) and
In O2 Micro, the Federal Circuit further reinforced Markman and Cybor by emphasizing that disputes regarding the legal meaning of simple English words (i.e., "only if") should not be submitted to the jury within the factual question of infringement if an underlying dispute as to their legal scope exists.
(11.) Wagner & Petherbridge, supra note 2, at 1123-24 (discussing the reinforcing effect of Cybor).
BACKGROUND ON THE FEDERAL CIRCUIT, CLAIM CONSTRUCTION, AND CYBOR
1990) (Posner, J., concurring) (determining the standard of review on the basis of facts versus law would be "absurd"); Duffy, supra note 10, at 122-23 & nn.51-53 (suggesting that Cybor
's choice between standards of review "cannot be made on the basis of metaphysical distinctions between fact and law"); Gary Lawson, Proving the Law, 86 NW.
Many, including those in dissent, believe that the Cybor
standard is not consistent with Markman.
for us to re-examine Cybor
's no deference rule."); id.
Phillips Electronics, a deeply-divided, en banc Court of Appeals for the Federal Circuit upheld a 15-year-old doctrine, from Cybor
(Markman I), (3) and was confirmed by the Federal Circuit in Cybor