As noted, the district court based its construction of the software claims on its conclusion as to what the critical claim terms would mean to a person of skill in the art. That conclusion in turn was largely based on the court’s assessment of extrinsic evidence. Although we have characterized claim construction as a question of law even when it involves competing presentations of extrinsic evidence, Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc), we recognize that there is substantial force to the proposition that such a conclusion is indistinguishable in any significant respect from a conventional finding of fact, to which we typically accord deference. See Amgen Inc. v. Hoechst Marion Rousel, Inc., 469 F.3d 1039, 1041 (Fed. Cir. 2006) (Michel, C.J., dissenting from denial of rehearing en banc); id. at 1043 (Newman, J., dissenting from denial of rehearing en banc); id. at 1044 (Rader, J., dissenting from denial of rehearing en banc); id. at 1045 (Gajarsa, J., concurring in denial of rehearing en banc); id. at 1046 (Moore, J., dissenting from denial of rehearing en banc). Applying our governing non-deferential standard of review, we uphold the district court’s conclusion in this case. If we were to treat that ruling as a finding of fact, we would uphold the district court’s ruling a fortiori in light of the more deferential “clear error” standard applicable to factual findings.
As seen from the TiVo “footnote 2”, fully six judges in Amgen are on record as favoring en banc review of Cybor for fact-based claim construction rulings. Clearly, Circuit Judge Mayer strongly favors overturning Cybor: “The court's opinion [in Phillips refraining from dealing with Cybor] is akin to rearranging the deck chairs on the Titanic-the orchestra is playing as if nothing is amiss, but the ship is still heading for Davey Jones' locker.” Phillips v. AWH Corp., 415 F.3d 1303, 1334-35 (Fed. Cir. 2005)(en banc)(Mayer, J., dissenting). With the vote of Judge Bryson as manifested in TiVo, this provides an eight vote majority for en banc review of an appropriate case – one more than needed.