After reading all 88 pages of this very scholarly opinion which left patent law right where it was post-Cybor – no matter how much weight the parties and amici felt stare decisis deserved – I went back and read Judge Lourie’s concurrence. It is mercifully brief and tries to cast some of the substantive issues in real-world contexts. He writes like a “Dutch uncle” – which the dictionary defines as one who “admonishes sternly and bluntly.” Whether or not you agree with his conclusions, he gets his points across like arrows in “The Hunger Games.”
He reduces the debate about the proper reading of Markman II simply by saying that the distinction between calling claim interpretation a “question of law” vs. a “question for the court” is not a substantial one. Whether or not the Supreme Court will disagree if cert. is granted is a question for another day.