Markman hearing

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A Markman hearing is a pretrial hearing in a U.S. District Court during which a judge examines evidence from all parties on the appropriate meanings of relevant key words used in a patent claim, when patent infringement is alleged by a plaintiff. It is also known as a "Claim Construction Hearing".[1]

Holding a Markman hearing in patent infringement cases has been common practice since the U.S. Supreme Court, in the 1996 case of Markman v. Westview Instruments, Inc., found that the language of a patent is a matter of law for a judge to decide, not a matter of fact for a jury to decide. In the United States, juries determine facts in many situations,[2] but judges determine matters of law.[3]

Markman hearings are important, because the court determines patent infringement cases by the interpretation of claims. A Markman hearing may encourage settlement, because the judge's claim construction finding can indicate a likely outcome for the patent infringement case as a whole. Markman hearings are before a judge, and generally take place before trial. A Markman hearing may occur before the close of discovery, along with a motion for preliminary injunction, or at the end of discovery, in relation to a motion for summary judgment. A Markman hearing may also be held after the trial begins, but before jury selection.[4]

The evidence considered in a Markman hearing falls into two categories: intrinsic and extrinsic. Intrinsic evidence consists of the patent documentation and any prosecution history of the patent. Extrinsic evidence is testimony, expert opinion, or other unwritten sources; extrinsic evidence may not contradict intrinsic evidence.[5]


  1. ^ Jakes, J. Michael (August 2002). "Using an Expert at a Markman Hearing: Practical and Tactical Considerations". IP Litigator. Retrieved February 9, 2010. 
  2. ^ Seventh Amendment to the United States Constitution
  3. ^ But see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
  4. ^ Eyre, Rebecca N.; et al. (February 2008). "Patent Claim Construction: A Survey of Federal District Court Judges" (PDF). p. 15. Retrieved June 30, 2014. 
  5. ^ Mueller, Janice M. (November 20, 2012). "Chapter 9: Patent Infringement". Patent Law (4th ed.). Aspen Publishers. pp. 452–453. ISBN 978-1-4548-2244-8.