Construing Patent Claims According to Their 'Interpretive Community': A Call for an Attorney-Plus-Artisan Perspective

Abstract

In light of continued frustration with claim construction jurisprudence, this article proposes abandonment of the commonly accepted notion that claims must be construed from the perspective of a person of ordinary skill in the relevant technological art. Crudely stated, if claims are to be the fundamental determinants of patent scope, the basic approach to construing claims should be one of reasonableness according to (1) established legal principles, (2) a well-informed reading of the patent and its prosecution history, and (3) the mores and understandings of claims' relevant interpretive community. The ordinary artisan perspective is not well designed to implement this approach. Ordinary engineers or scientists typically do not form a well-constituted interpretive community for patent claims. Consequently, their views on claim meaning might be too legally ill-informed and idiosyncratic to permit substantial predictability.

A better perspective to associate with claim construction is that of a patent attorney having access to the knowledge of a person of technological skill. Such an attorney-with-artisan perspective would make use of the artisan's knowledge to help ensure claim construction's technological sensibility. But it would more generally follow rules and techniques for claim construction that are publicly known and anchored in the practices of an active interpretive community. Claim construction law and practice are already mostly in agreement with this attorney-with-artisan perspective, and substantially in conflict with the ordinary artisan perspective. Further, use of an ordinary artisan perspective for claim construction has a surprisingly weak historical pedigree. Recognition that an attorney-with-artisan perspective governs claim construction should promote the law's transparency, coherence, and predictability, as well as providing a more sensible reference point for its improvement and critique.