PROCEDURAL LINE DRAWING: CLAIM CONSTRUCTION PROCEDURE AND CONSTRUING IN LIGHT OF THE ACCUSED PRODUCT
(49) The Federal Circuit feared that a judge construing claims in light of the accused device may be more likely to "prejudge the ultimate infringement analysis by construing claims with an aim to include or exclude an accused product or process." (50) And conducting Markman hearings early in a case, outside of the context of the accused device, may help a district court avoid this practice.
(56) other Federal Circuit opinions have made similar endorsements, with one suggesting that construing claims in a vacuum may be akin to rendering advisory opinions.
(87) Here, however, the Federal Circuit held that the district court erred in not construing the legal scope of "only if," which submitted a question of claim construction to the jury in violation of Markman.
No hard and fast rules forbid construing claims through infringement hypotheticals or through express inclusions and exclusions.
In several instances, O2 Micro has prompted district courts to revisit their claim constructions in favor of further construing claim language.