Imagining a post-Cybor world

Late last month, the Supreme Court granted certiorari in Teva v. Sandoz.  The Supremes will be taking up the question of whether claim construction is a matter of law.  This has been a settled issue since the Federal Circuit decided Markman v. Westview and Cybor v. Fas Tech  back in 1998.  Today, I'm imagining what happens if the Supreme Court, in deciding Teva, overrules Cybor.  What might a post-Teva world look like?

Given the current Supreme Court's disdain for long-standing Federal Circuit precedent, and their apparent allergy to bright-line rules (at least when it comes to patent law), I think it's a pretty safe bet that they will hold claim construction to be a mixed question of law and fact.  Such a holding would not only be another in a series of recent slaps in the face of the Federal Circuit, but also have the virtue of muddying the waters.

After such a ruling, District Courts may still hold claim construction hearings, but they will not be able to prevent the parties from presenting testimony in support of their claim constructions, including not only expert witnesses but also fact witnesses.  This will presumably strengthen the lower court's claim construction, as the Federal Circuit will be more constrained to accept the lower court's factual findings. Maybe the Federal Circuit's reversal rate will drop below 50%!

Some courts may be tempted to delay claim construction until trial, particularly if there's a jury involved.  Consider this:  if juries are the triers of fact, and there's a jury demand, the jury could presumably be tasked with deciding the factual issues relating to claim construction.  Is a court going to empanel a jury for a claim construction hearing, and then send them away with instructions not to read anything about the case until they're called back for the trial in a year or two?  You'd need a bigger jury, since it's inevitable that jurors will move out of the jurisdiction in the amount of time that it takes to get from the claim construction hearing to trial.  Courts tend to be relatively solicitous of jurors - are they really going to leave them on the hook for that long?  Can we have one jury for claim construction and another for trial?

I'm sure that there are other worms in this can.  We'll have plenty of time to think of them in the next year, while we wait for the Supreme Court to give us the answer.