This article asserts that although notions of uniformity and certainty have always been part of patent law parlance, since the Federal Circuit's decision in Markman v. Westview Instruments, Inc., these noble ends have achieved mantra status. In Markman, the Federal Circuit, in the name of uniformity and certainty, characterized claim interpretation as a question of law subject to de novo review, thus positioning itself as the arbiter of claim meaning. If the Federal Circuit is unwilling to exercise greater obeisance toward district court claim interpretations, this article argues that to achieve uniformity and certainty in the context of de novo review the Federal Circuit should entertain interlocutory appeals of Markman hearings. Accordingly, this article proposes that the Supreme Court, pursuant to the Rules Enabling Act, promulgate a rule specifically permitting or requiring the Federal Circuit to hear an interlocutory appeal of a district court claim interpretation decision. The Federal Circuit, which has a special duty to promote uniformity and certainty, cannot have it both ways; that is, the court cannot employ a de novo standard of review on the one hand, and, on the other hand, refuse to entertain interlocutory appeals. Furthermore, acceptance of interlocutory appeals would foster early certainty and promote settlement negotiations. Consistent with this proposal, this article also recommends that district courts, when applicable, apply the doctrine of issue preclusion to their sister courts' claim interpretation decisions. The application of issue preclusion would promote uniformity at the district court level, and coupled with interlocutory review, would promote early certainty.


Patent Law, Uniformity, Certainty

Publication Date


Document Type


Place of Original Publication

University of Illinois Law Review

Publication Information

2001 University of Illinois Law Review 355 (2001)


COinS Craig Allen Nard Faculty Bio