By Marius Meland (April 25, 2006, 12:00 AM EDT) -- In Lava Trading, Inc. v. Sonic Trading Mgmt., LLC, Nos. 05-1177, 05-1192, Slip Op. (Fed. Cir. April 19, 2006), the Federal Circuit announced that it was in the "awkward position" of having to construe claims without "a meaningful comparison of the accused products to the asserted claims" and while "defendants' counterclaims of invalidity and unenforceability are still pending before the trial court." Despite being "troubled" by this "awkward position," which the district courts routinely face as part of the typical claim construction process, the Federal Circuit nonetheless accepted what was in effect an interlocutory appeal and took jurisdiction. The Federal Circuit, as it does in as much as 50% of the cases before it, reversed the claim construction and remanded the case for further proceeding. In sum, the Federal Circuit, for perhaps the first time, issued an interlocutory opinion addressing claim construction. Judge Mayer dissented from this decision on the grounds that the Court should not have taken jurisdiction in such a circumstance, and lamented that the Supreme Court in Markman, and the Federal Circuit in Phillips and Cybor, continue to find claim construction to be a question of law for the Federal Circuit to decide de novo, without any deference to the finder of fact....