Appellate Law & Practice

This blog is devoted to appellate law and will provide case summaries and links to articles on appellate advocacy. Please send your news and views to Appellate [at] gmail [dot] com. We also welcome new contributors. Email us if you are interested.

Sunday, November 21, 2004

Appellate Practice Bookworm

Since it is the weekend, and all the clerks are hard at work, coming up with next week’s opinions, I figured that I would float this trial balloon. Indeed, there is more to appellate practice than just figuring how to get admitted, and digesting cases. There exists a somewhat healthy body of literature regarding appellate case, and I think that we need to, at least on the weekends, read it. To start, I am going to do as Larry Solumn does, and post recent Articles uploaded to SSRN. However, I have a bunch of books on appellate practice at home, and if I get the time I will post reviews of them. So, here goes:

In the exciting December 2004 episode of the U. Pa. L. Rev., William H Burgess “…examines the Federal Circuit's appellate review of claim construction during the years after its en banc decision in Cybor, in which the Court declared that claim construction is purely a matter of law, with no underlying factual inquiries, and would thenceforth be reviewed de novo.” He disagrees because 1) certain issues underlying claim construction are immutably issues of fact; and 2) Cybor is inconsistent with the Supreme Court's decision in Markman.

You are HEREBY ORDERED to download Simplicity at the Cost of Clarity: Appellate Review of Claim Construction and the Failed Promise of Cybor now.

For some background see, Baker Botts’ article on the subject here, Pillsbury Winthrop's here, Dickstein Shapiro's here, and Foley Hoag's here.

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