between Markman II and Cybor the reversal rate rose to 26.
following Cybor, the reversal rate rose yet again to 32-33%.
In O2 Micro, the Federal Circuit further reinforced Markman and Cybor by emphasizing that disputes regarding the legal meaning of simple English words (i.
Judges Gajarsa, Linn, and Dyk, agreed that Cybor should be reconsidered, but felt Amgen was not the appropriate case for doing so.
BACKGROUND ON THE FEDERAL CIRCUIT, CLAIM CONSTRUCTION, AND CYBOR
This Comment argues that, through its decision in Cybor, the Federal Circuit has found a way to reverse district court decisions that are unresponsive to its teachings, but has done so in a way that has clouded the clarity of its teachings.
102) As should be evident from the discussion in Part I of this Article, the standard of review question has been entirely settled since Cybor
in 1998 and virtually settled since Markman I in 1995.
But, opponents of the Cybor standard theorize that de novo review is a mistake in other instances where factual findings regarding, for example, the level of ordinary skill in the pertinent art of the patented invention, the definition of that art, and that art's accepted meaning of certain claim terms are relevant to the construction.
And, despite opportunities since Cybor to address that issue, the Supreme Court has consistently declined to do so.
While her opinion in Lighting Ballast upholds Cybor, the dissent she raised in Phillips criticized Cybor for creating an "irrational and reckless regime.
Another reason was that, although many bar associations disagreed with Cybor, every company that spoke as a friend of the court was in favor of upholding Cybor.
holding in Cybor
and called for increased deference to district court