000523	09whyte_wmp_a_16.wma
000000	MARK SMITH:  Do you also have an opinion on requiring patent holders or plaintiffs to chose representative claims in order to speed the process up and maybe make it easier in the circuit?
000020	JUDGE WHYTE:  That's an issue that's been the subject of a lot of conversation recently.
000026	Some of the judges in the Northern District just have a flat-out rule that, I'm only going to let you present so many claims or I'm only going to interpret so many terms.
000042	I'm not particularly in favor of that approach, but I certainly understand the problem and I've faced the problem.
000055	But I think what you need to do is have an early conversation with the parties and try and reach an agreement as to what claims are going to be an issue and how many terms are going to be construed.
000114	I've had pretty good luck by just talking to the parties and trying to persuade them to reduce the number of claims and the number of terms that are involved.
000130	Certainly claims can be representative.
000133	In other words, one claim can basically let the parties know how other claims would come out.
000147	You can also do such things as deal with the claims, the interpretation of the claims that -- or you can interpret those claims that would be dispositive of the case.
000203	In other words there may be a claim term that's in dispute, that regardless of how you as the court interpret it, it's still going to leave a dispute between the parties.
000213	There are other claims that perhaps if you interpret it one way, it necessarily means that one side wins and one side loses.
000220	So perhaps hearing or construing those claims first is a way to go.
000231	MARK SMITH:  Do you mind if I ask quickly about claim construction and the current de novo review that the Federal Circuit is giving District Courts.
000241	Do you feel that's appropriate or would you like to see that changed?
000247	JUDGE WHYTE:  Well, I think it will be changed.
000250	The question is how.
000253	Certainly it's an issue that's talked about a great deal.
000257	I think as a practical matter there is some deference given to what the Federal Circuit might view as a well thought through opinion.
000310	If it's well reasoned, hopefully it's more apt to be right.
000317	But we think there's kind of an assumption that if it's thought through we ought to look hard before we reverse that or interpret the claim differently than the District Court has.
000333	But there are statements in cases to the effect that claim construction is a matter of law.
000342	That to me makes no sense because claim construction necessarily, in most cases, involves some questions of fact.
000352	For example, if you have a term such as widget that's used in a patent claim and it's nowhere defined in the patent but people in the field would know what widget meant.
000407	And let's say the question was, what did widget mean in 1980? And then you had one party offering an expert who said, 
000418	well, in 1980 widget meant a disk of a diameter of six inches or less, later became to be or applied to disks that were only three inches in width
000435	and really we didn't refer to a widget being one that was four to six inches.
000441	And then another expert comes in and says, no, widget has always meant and still does mean any kind of disk that's six inches or less in diameter.
000450	Well, the judge has got to choose which expert to believe because he has to or she has to define widget.
000502	And that's clearly a question of fact, not a question of law.
000505	And it seems to me that that kind of decision should be given deference, because the judge -- 
000512	the district judges who want to look at the experts, heard the testimony, and is in a better position to, I think, evaluate the strengths or weaknesses in that testimony.