PAST ARTICLES AND EDITORIAL BOARDS Volume V, No. 2 - 1997
MARKMAN v. WESTVIEW INSTRUMENTS, INC.
AND ITS PROCEDURAL SHOCK WAVE: THE MARKMAN HEARING
Comment
Frank M. Gasparo
5 J.L. & Pol'y 723 (1997)
The U.S. Supreme Court's decision in Markman paved the way for district courts to employ a new procedural device in construing the scope of a patent and the meaning of its claims when a patent infringement action is filed. Popularly known as the "Markman Trial", it is a pre-trial procedure which trial judges use to inform parties how to tailor their trial strategies. In addition, it has proved to be a springboard for alternative procedural options. Most importantly, it has provided the district courts with a tool to implement its policy concerns.

Prior to Markman, the meaning of terms within a patent's claim was either a matter of interpretation for the judge or the jury. The inception of the "Markman Trial" clarified the issue as to who might properly construe a patent's claim and prevented an inefficient use of the trial and appellate processes. Since interpretation of patent claims is made by a trial judge, discovery prior to and during a "Markman Trial" is all the more vital. Finally, because Markman held that patent claim construction is a pure question of law, trial judges are now able to dispose of a case through summary judgment.

The Note explores the issues surrounding the "Markman Trial" in the light of the procedural difficulties in patent law and argues that the Federal Circuit must be willing to increase its docket activities in order to derive the full procedural benefits of the Markman decision.