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To: Skeeter Bug who wrote (73226)	5/21/2001 3:38:42 PM
From: tinkershaw	Read Replies (3) \| Respond to of 93625

tinkershaw, what % of patent cases get overturned on appeal where the judge didn't even let the case go to jury? I have heard 50% but that is not a figure I've verified. But let me speak on this a little more. A Markman hearing is a matter of law. It is reviewed by the appellate courts without any deference WHATSOEVER to the findings of the trial judge. They can do whatever they want to it. It is like getting a second trial. A second swing at the plate. Now let me talk about the appellate court this case will be heard in front of. It is a recently created court which hears just patent disputes. The judges on this court are often former practicing patent attorneys. This court is very pro-patent. They have been so pro-patent that the practice of patent law was pretty much revolutionized when this court came into being. This is because the traditional Federal appellate courts were very anti-patent. They strictly construed patents. And rarely was a patent case ever tried to a jury. Far less than 10% of all patent disputes that went to trial were jury trials. Then lo and behold comes this new appellate court of patent experts. Now 50% or more of the patent disputes that go to trial go to a jury trial. A big reason for this is that this new appellate court interprets patents much more liberally, and is actually pro-patent. So I don't know if this answers your question. But the fact is, is that this Markman ruling by Judge Payne is far from a final decision and it is not a long-shot to be overturned. This is not to say that its a sure thing either, because it is not. But that in general an appeal like this, particularly on very solid patents, is not just a shot in the dark. Tinker