In short, the Markman hearing in U.S. patent litigation has become a critical procedure, second only to the trial itself. Limitations of language leave claims subject to the interpretation of the reader, which leads to the core of many patent disputes. Courts have been instructed that they must resolve these disputes about interpretation and construe the claims for the litigants. To do this, judges must parse through the extensive and often confusing intrinsic and extrinsic evidence and make sense of it. Given that most judges do not have technical backgrounds and their dockets are typically crowded, claim construction can be a particularly demanding task for a judge. The Markman hearing represents a party's key opportunity to assist the judge with his or her task and to guide the judge through the evidence in a credible and convincing manner. This opportunity must be taken seriously by the lawyers and be fully supported by the client. Good advocacy here can lead to a positive claim construction ruling and enhance the possibility of settlement, saving the client the tremendous expense of a trial.
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