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Justin E. Gray

IP Litigation Attorney at Foley & Lardner LLP

Former Adjunct Professor at Northwestern University School of Law

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Reines and Greenblatt Publish "Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009, Part II"

Today, Dennis Crouch's Patently-O blog published an article by Edward Reines and Nathan Greenblatt  of Weil, Gotshal & Manges LLP entitled "Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009, Part II." Edward Reines and Nathan Greenblatt, Interlocutory Appeals of Claim Construction in the Patent Reform Act of 2009, Part II, 2010 Patently-O Patent L.J. 7 (2010).

This article is a follow-up to an article the authors published on the same topic in August 2009.  In today's article, the authors discuss a modification to the interlocutory claim construction appeal provision of the Patent Reform Act of 2009.  This modification places four qualifications on the eligibility of such appeals: (1) the claim construction order would need to be "final"; (2) the order would need to be based on a "sufficient evidentiary record" for appeal; (3) interlocutory treatment of the order would need to materially advance the ultimate termination of the litigation or would need to likely control the outcome of the case; and (4) the Federal Circuit would have to find the interlocutory appeal at issue not "clearly erroneous."

While the authors admit that "[t]hese modifications represent an admirable effort to respond to problems with the original proposal", they conclude that "[c]ongress should scrap the proposed interlocutory appeals provision altogether and stick with the time-tested interlocutory appeals provision applicable to civil cases generally."  Id. at 8-9, 13.

The article provides a thought-provoking perspective on the interlocutory appeal debate and is a must-read for those interested.  The article can be found in its entirety here.