We’ve mentioned the reversal rates on claim construction before – under the current de novo standard of review (no deference) the Federal Circuit routinely reverses trial judges on claim construction, very often the decisive issue. The Supreme Court has recently agreed to hear the case of Teva Pharmaceuticals v. Sandoz, which will address the issue of how much (if any) deference the Federal Circuit should afford a district court on issues of claim construction. Until then, however, a victory or defeat at the trial court level provides very little certainty to litigants facing an appeal.
Unless, of course, the district court judge has previously sat by designation on a claim construction appeal. A hat tip towards Written Description for calling our attention to a fascinating study by Lemley & Miller that concluded that the reversal rate dips by approximately 50% if the district judge previously participated in a claim construction appeal compared to cases where the district judge had never sat by designation. Sometimes, it seems, it pays to put in a little face time at the Federal Circuit.