I’m wondering if/how folks are thinking about parallels between O v G and Teva v. Sandoz w/r/t CAFC’s understanding of standards of review & how to separate questions of fact from questions of law in appeals of IP disputes. They sure
de novo review.
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For a long time in patent law there was a raging debate within the CAFC about whether they owed any deference to district court judges with respect to claim construction. Their rule was that claim construction was always a question of Law subject to de novo review. No deference.
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SCOTUS in Teva v. Sandoz said they’d gotten it wrong, and some deference was owed to district courts in matters of claim construction: https://www.supremecourt.gov/opinions/14pdf/13-854_o7jp.pdf …. It always struck me that de novo review of claim construction decisions was a power grab.
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I got that power grabby feeling again today when I was reading the court’s justification for saying fair use is really a question of law, where the jury is only empowered to decide “historical facts.”
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Just finished reading and also saw the Teva parallel. In your view, should the ultimate fair use determination be a Q for the jury? If not, then I thought the court appropriately articulated deference for "historical facts" (though I prefer Teva's "factual underpinnings" lang.)
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Though I suppose that still leaves the Q of whether the court *articulated* a deferential standard wrt "historical facts" but then essentially reviewed them de novo in the rest of the opinion...
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I’d have to think more about it. But seems to me that not all facts are “historical facts” (as in, did x happen or not), & the jury is the finder of all facts. If there are contested facts, historical or otherwise, then they’re for the jury. If not, then SJ is appropriate.
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