In Markman claim term disputes, the paramount interest of the public in patents and in the public domain is unrepresented, even though “patent rights are ‘issues of great moment to the public.’” What delineates the outer bounds of the patent claim interpretation inquiry are the “private interests of the litigants.” The public interest is set aside. Neither the courts nor the litigants are well positioned to address the “underlying policy of the patent system” or to ask pointedly whether the patent claims, unless properly construed, have enough “worth to the public” to “outweigh the restrictive effect of the limited patent monopoly.” The public interest in how inventions are described in issued patents is a precise but flexible construct that confines the granted rights within legal limits, disagrees with claims being read so expansively that information is taken back from the public domain, and urges objective interpretations that favor neither litigants’ infringement nor invalidity strategies. Amicus groups could define zones of interest when certain patent claims are interpreted and move to represent the public interest in the Markman proceedings. A public interest advocacy group consisting of law students who have completed a patent law course could be formed to identify cases that involve patent claims that affect segments of commerce important to the public. Through an admitted attorney and local counsel, such a group would enter an appearance for the limited purpose of participating as amicus in the claim interpretation proceedings. This article argues first that amici could protect the public domain and enforce the public notice function of patent claims. Then it argues in Section Three that having the litigants restrict the range of interpretations a court may consider leaves the public interest aspects out of the decision-making process. Next, Section Four of the article further contrasts the litigation-driven interpretations and the objective rules of construction. The final section examines whether an amicus group representing the public interest might be excluded from claim interpretation proceedings.
3 Am. U. Intell. Prop. Brief 17 (Summer 2011)