Patent litigation is notoriously expensive.
A fundamental reason for this expense is discovery. A substantial factor contributing to discovery expense is claim interpretation, or perhaps more accurately the timing of claim interpretation. Until such time as the claims have been properly construed, the parties have no idea what the legal scope and meaning of the claim terms are, and therefore must out of an abundance of caution conduct discovery and pursue infringement theories on all possible legal interpretations of the claim terms at issue. By taking claim interpretation away from the jury, Markman and its progeny mean that claim interpretation can now occur at any time in the litigation, and no longer just before, during or after trial. The Pre- Markman Procedure Prior to Markman , the jury generally interpreted the scope and meaning of claim terms as a question of fact during its deliberations.