Case Citator › Herbert Markman and Positek, Inc. v. Westview Instruments, Inc. and Althon Enterprises, Inc.

Herbert Markman and Positek, Inc. v. Westview Instruments, Inc. and Althon Enterprises, Inc.

Is it still good law? What later courts have actually done to this case.

Limited by some courts
Court
Federal Circuit
Citation
52 F.3d 967
Decided
Confirmed treatments
1
Flagged citations read
119 of 119
Citing cases (total)
2,940
Treatment dates
1997
Limited by some courts
At least one reviewed court has limited this case’s holding to narrower facts or a narrower rule. No reviewed court has overruled it. Markman remains controlling for claim construction in infringement litigation, but the Federal Circuit declined to extend its method to patent applications before the PTO. All 119 flagged citations have been read; the confirmed treatment is listed below.
More on how this was screened

Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. required clear-error review of subsidiary factual findings during claim construction, contrary to the en banc opinion's statement that claim construction makes no factual evidentiary findings. Teva addressed Cybor and the Supreme Court's Markman decision, rather than expressly treating this Federal Circuit opinion. Its ruling changes that aspect of appellate review while leaving Markman's allocation of claim construction to judges intact.

Every treatment on this page is written from the citing opinion itself, with a verbatim quote, never copied from a commercial citator. A citation flagged by our screen but not shown here was read and found not to weaken this case.

2,940 later cases cite Herbert Markman and Positek, Inc. v. Westview Instruments, Inc. and Althon Enterprises, Inc.; 119 of those citations sat close to treatment language and were flagged for reading, and all of them have been read. Citations that did not sit near treatment language were not flagged and were not read one by one, so a court that weakened this case without using any of that language would not appear here.

Relying on Herbert Markman and Positek, Inc. v. Westview Instruments, Inc. and Althon Enterprises, Inc.?

This page shows what later courts did to it. Ask about your specific facts and see whether it still carries your argument, with citations you can check.

Treatments

Limited

  • The Federal Circuit rejected the invitation to carry Markman's infringement-litigation construction method into patent prosecution, where the PTO uses the broadest reasonable interpretation.

    In re Morris · Federal Circuit · filed

    As a preliminary matter the parties disagree about the proper claim construction methodology to be employed by the PTO. Appellants argue that this court’s in banc decisions in Markman v. Westview Instruments, 52 F.3d 967, 34 USPQ2d 1321 (Fed. Cir.1995) (in banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996), and in In re Donaldson, 16 F.3d 1189, 29 USPQ2d 1845 (Fed.Cir.1994) (in banc), require the PTO in the course of prosecution to interpret claims in the same manner as courts are required to during infringement proceedings. The Solicitor responds by arguing that our past decisions permit the PTO to give claim language its “broadest reasonable interpretation” during prosecution ... The Solicitor is correct, and we reject appellants’ invitation to construe either of the cases cited by appellants so as to overrule, sub silentio, decades old case law.
    Read the full opinion on CourtListener →

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