Litigating Claim Construction: A Practitioner's Guide to Markman Briefing, Experts, and Indefiniteness
By Casey Scott McKay ·
Claim construction is where most patent cases are decided, and it runs on a procedural schedule that begins months before the hearing. This guide works it in sixteen stages: read the intrinsic record before anything, chart every candidate construction against infringement and invalidity, select terms strategically, build the joint chart, decide whether to use an expert, brief in the framework's order, prepare the tutorial, argue, and then act on the order immediately. It covers indefiniteness as a parallel motion, means-plus-function attacks on software claims, the coordination problem when a PTAB proceeding runs alongside, and the appellate consequences of choosing an intrinsic or extrinsic record. Worked briefing language and a cost map run throughout. The companion article supplies the doctrine and the companion checklist the box-by-box form.
IP and Technology > Patent Litigation | Guide | Published 6 July 2026 - Updated 26 July 2026 | Casey Scott McKay - marksy.us
Summary. Claim construction is where most patent cases are decided, and it runs on a procedural schedule that begins months before the hearing. This guide works it in sixteen stages: read the intrinsic record before anything, chart every candidate construction against infringement and invalidity, select terms strategically, build the joint chart, decide whether to use an expert, brief in the framework's order, prepare the tutorial, argue, and then act on the order immediately. It covers indefiniteness as a parallel motion, means-plus-function attacks on software claims, the coordination problem when a PTAB proceeding runs alongside, and the appellate consequences of choosing an intrinsic or extrinsic record. Worked briefing language and a cost map run throughout. The companion article supplies the doctrine and the companion checklist the box-by-box form.
Keywords: Markman briefing, claim construction procedure, term selection, joint claim construction chart, intrinsic record, prosecution disclaimer, extrinsic evidence, construction expert, technology tutorial, indefiniteness motion, means plus function, summary judgment, local patent rules, appellate posture, stipulated judgment, parallel proceedings, PTAB coordination, claim differentiation, fallback construction, patent litigation
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