Deference to ITC Claim Construction Decisions?

Erbe Elektromedizin v. ITC and Canady Tech (Fed. Cir. 2009) 08-1358.pdf

Erbe's patent appears to cover aspects of a surgical flesh-welding technique known as argon plasma coagulation (APC). After narrowly construing the claimed plurality of endoscopic “working channel," the ITC found no evidence of direct infringement. On appeal, the Federal Circuit affirmed.

I'll avoid the claim construction particulars, but focus here on whether the Federal Circuit can properly review ITC Claim Construction decisions de novo.

Claim construction is a matter of law, and under the Administrative Procedures Act, the Federal Circuit reviews ITC decisions of law for "correctness." However, in the usual course, agency decisions interpreting a matter of law are ordinarily given at least Skidmore level deference. See Christensen v. Harris County.

Comments

[arabian]

Me confused. This seems simple. Claim construction is a matter of law. So the claim construction at the Federal Circuit gives absolutely no deference to the lower court, or the ITC, right?

The whole ITC "correctness" review from the APA refers a standard of review for the entire proceeding. But individual purely, legal issues will be reviewed De Novo.

I don't know what Skidmore says, and I don't see how it could apply to this situation. I would welcome thoughts on this last point.

[Greg]

I don't think Skidmore has much if anything to say about deference to agency adjudicative actions; by its terms, it applies only to agency "rulings, interpretations and opinions," and not "rulings . . . reached as a result of hearing adversary proceedings in which [the agency] finds facts from evidence and reaches conclusions of law from findings of fact." Consider these two paragraphs from the Skidmore decision itself:

(excerpt starts)

There is no statutory provision as to what, if any, deference courts should pay to the Administrator's conclusions. And, while we have given them notice, we have had no occasion to try to prescribe their influence. The rulings of this Administrator are not reached as a result of hearing adversary proceedings in which he finds facts from evidence and reaches conclusions of law from findings of fact. They are not, of course, conclusive, even in the cases with which they directly deal, much less in those to which they apply only by analogy. They do not constitute an interpretation of the Act or a standard for judging factual situations which binds a district court's processes, as an authoritative pronouncement of a higher court might do. But the Administrator's policies are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case. They do determine the policy which will guide applications for enforcement by injunction on behalf of the Government. Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons. The fact that the Administrator's policies and standards are not reached by trial in adversary form does not mean that they are not entitled to respect. This Court has long given considerable and in some cases decisive weight to Treasury Decisions and to interpretative regulations of the Treasury and of other bodies that were not of adversary origin.

We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

(excerpt ends)

Even if "Skidmore deference" were to apply to "adversary proceedings in which [the agency] finds facts from evidence and reaches conclusions of law from findings of fact", it's exactly what courts give to district-court rulings (or agency adjudications) all the time: The rulings of the lower tribunal are entitled to whatever respect they earn within their four corners. See, for example, the court's opinion in Apple Computer, Inc. v. Articulate Sys., Inc., 234 F.3d 14, 20 (Fed. Cir. 2000), written by Judge Archer, the author of Markman: "In conducting this de novo review, however, 'we begin with and carefully consider the trial court’s work.'" (quoting Key Pharm. v. Hercon Labs. Corp., 161 F.3d 709, 713 (Fed. Cir. 1999) (in turn citing Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1462-63 (Fed. Cir. 1998) (en banc) (Plager and Bryson, JJ., concurring separately))). Or, as Judge Rader is fond of saying, the court "may, but need not, give deference to the district court's ruling."

[Josh Masur]

As I understand it, deference relates to statutory interpretation, not general issues of law, and is limited to "interpretation of a statute by the agency charged with its administration." That means that the Federal Circuit defers to the ITC on issues related to Title 19. Since the ITC doesn't administer Title 35, its claim construction receives no deference.

What am I missing?

[confused SCOTUS]

I wonder how often a federal court reverses an ITC claim construction determination or infringement determination? I have heard that the ALJs at the ITC know what they're doing. Does anyone have any experience in this area and want to comment?

[West Coast Guy]

Dennis,

"Claim construction is a matter of law, and under the Administrative Procedures Act, the Federal Circuit reviews ITC decisions of law for "correctness." However, in the usual course, agency decisions interpreting a matter of law are ordinarily given at least Skidmore level deference."

I fail to see an inconsistency. Interpreting claims is not the same as interpreting law.

[Ares Vista]

I agree with West Coast Guy. This is perfectly valid and legal.