Both the House (H.R. 1260) and Senate (S.515) versions of the Patent Reform Act of 2009 include a provision that would extend the jurisdiction of the Court of Appeals for the Federal Circuit to include claim construction orders issued by district courts. Under the Act, a litigant could initiate an interlocutory appeal to the Federal Circuit if the district court approves a request for the appeal within 10 days of the Markman ruling.

While not the most controversial, this has to be one of the Act’s most extreme provisions. The substance of the proposal is quite drastic – it effectively takes the Federal Circuit’s current discretion over such interlocutory appeals and hands it to the district courts.

The potential effect of such a change is equally as drastic. Claim construction is a linchpin issue in all patent infringement suits that, by definition, always impacts the infringement analysis. As such, litigants would likely be ready and willing to use the Act to seek interlocutory appeals of claim construction rulings, and district court judges would likely be willing to grant the required permission to file such appeals. The entire litigation process would be halted – likely for a year or more – while the litigants, judge, and the public await the results of the Markman appeal. Other substantive issues, only appealable after entry of a final judgment, would likely still be presented to the Federal Circuit in a second appeal.

The end result would be a whole new patent backlog. The Federal Circuit would be buried in claim construction appeals, effectively blocked from handling other worthy patent issues in an efficient manner. It’s hard to imagine this “reform” as helping our patent laws. The creation of a short circuit claim construction appeal would cause other areas of the law to suffer as the new patent backlog grows and robs the court of precious time. Absent a concurrent expansion of the court or even the creation of a specialist “claim construction division,” this reform measure must fail simply on grounds that it hinders the very judicial efficiency its supporters purport to be serving.

While some might argue that this new backlog is a just dessert for the messy claim construction environment the court has developed, it’s clearly a short-sighted, duct-tape solution that shows a lack of concern for the patent law as a whole. The “problem” of claim construction, and the patent law as a whole, would be better served by legislatively requiring a degree of deference to district court judges during normal appellate review of claim construction issues.