concurring in ■ part.
I concur in the decision to dismiss this appeal because the patent has expired and *940the appeal from the decision not to grant a preliminary injunction is therefore moot. The opinion states that “[t]he only relevant fact in this appeal is that the ’584 patent has expired.” That essentially decides the case. Because the parties both apparently wished us to construe the claims of the patent, the opinion then goes on to decline to do so on the sound ground that we prefer to do that on a developed record. I believe the opinion should have ended there.
The opinion then goes on to state that the Supreme Court classified claim construction as a “mongrel practice” consisting of factual and legal components and accordingly that “we may be required to defer to a trial court’s factual findings.” The opinion further states that “[wjhere a district court makes findings of fact as part of claim construction, we may not set them aside absent clear error.”
The Supreme Court did not expressly characterize elements of claim construction as questions of fact, nor did it address any standard of review. Markman v. Westview Instruments, Inc., — U.S. -, -, 116 S.Ct. 1384, 1387, 134 L.Ed.2d 577, 38 USPQ2d 1461, 1463 (1996) (“The question here is whether the interpretation of a so-called patent claim ... is a matter of law reserved entirely for the court, or subject to a Seventh Amendment guarantee that a jury will determine the meaning of any disputed term of art about which expert testimony is offered.”). It did state that, in determining whether the judge or jury should decide claim construction, “[w]e have also spoken of the line [whether an issue is or is not necessarily a jury issue] , as one between issues of fact and law.” Id. at -, 116 S.Ct. at 1390, 38 USPQ2d at 1465. Disavowing that approach, it then went on to say that “the sounder course, when available, is to classify a mongrel practice (like construing a term of art following receipt of evidence) by using the historical method....” Id. Finding “no clear answers” even in that direction, the Court stated “that when an issue ‘falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.’ ” Id. at -, 116 S.Ct. at 1395, 38 USPQ2d at 1470 (quoting Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985)).
The Court thus eschewed the fact/law distinction. In any event, it surely did not indicate any standard of review. Not having had the issue argued or briefed in this case, neither should we. There is no basis, even in dictum, for us to state in this case that we would, have to defer to the trial court on so-called issues of fact arising in claim construction.
Moreover, our in banc court stated that “claim construction is properly viewed solely as a question of law.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 983-84, 34 USPQ2d 1321, 1333 (Fed.Cir.1995) (in banc), aff'd on other grounds, — U.S. ——, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996). Addressing the argument that underlying fact questions may exist in claim construction just as in contract construction, we stated that any subsidiary fact questions that may exist in contract cases involve questions of-the parties’ subjective intent which do not arise in claim construction. Id. at 984-86, 34 USPQ2d at 1334-35. The Supreme Court did not criticize or overrule any aspect of our in banc opinion. Thus, the analyses and holdings of our in banc court might preclude a subsequent panel before which the issue properly is raised from holding that fact questions exist in claim construction that require deference to the district court.