On March 25, 1998, in an extraordinary ruling, an en banc decision by the Federal Circuit was issued. Cybor Corp. v. Fas Technologies, Appeal No. 98-1286,-1287. While only a standard three-judge panel heard argument, sua sponte the full court determined that it would rule en banc in this case. Its clear purpose was to establish, indeed force upon the entire court, a uniform interpretation of Markman v. Westview [Markman I], 52 F. 3d 967, 34 USPQ2d 1321 (Fed. Cir. 1995), aff'd [Markman II]116 S.Ct. 1384 (1996). That purpose may have met with only qualified success. While nine of the twelve judges of the full court joined in the majority opinion, two of those filed separate concurring opinions, two others filed a separate opinion concurring in the judgment only, a separate opinion of "additional views" was filed, and one additional judge (Rader) filed a fully dissenting opinion. Uniformity among the judges on the Federal Circuit continues to be elusive and there remain sharply differing points of view.
Cybor essentially takes what Judge Plager's concurring opinion calls an "unremarkable case," and uses it as a platform for a repudiation of a number of post-Markman Federal Circuit opinions which expressed a view that the appellate court either should or may give deference to the views of a trial judge faced with evidentiary disputes as to the meaning of claim terminology. In so doing, Senior Judge Archer's en banc opinion flatly states that U.S. patent claim construction is "a purely legal issue" and therefore "is subject to de novo review on appeal." No deference is to be given to the district court's claim interpretation views.
In so doing, the Federal Circuit now also asserts that the unanimous affirmance by the U.S. Supreme Court in Markman II not only agreed with Markman I that claim construction is a question of law for the court and not a question of fact for the jury, but also held that the determination of this issue was in effect free from any subsidiary questions of fact. Varying views on this latter issue has led to the multiplicity of opinions in Cybor, several of which point out that the U.S. Supreme Court's decision said no such thing and is indeed susceptible of alternative interpretation. Chief Judge Mayer's concurring opinion sets forth intense disagreement with the Cybor majority's reasoning, "because it profoundly misapprehends" Markman II, which he somewhat sarcastically asserts did not go so far as to install the Federal Circuit "as a collegial trial court."