Plain Language Patents

17 Pages Posted: 28 Dec 2010  

Robin Feldman

University of California Hastings College of the Law

Date Written: May 30, 2008

Abstract

Law is a process of Bounded Adaptation. The law that exists at any given moment is constantly driven to adapt to changing circumstances within the framework of what has gone before. The boundaries of that framework are policed by the necessity of articulating an interpretation in a way that gains general acceptance. It is the need to effectively articulate a common logic that mitigates the distortion of personal perspective. This articulation and confirmation is essential in a system that claims allegiance to precedent, and it reinforces our ability to serve that allegiance.

This process of Bounded Adaptation cannot proceed effectively without an adequately structured dialogue that will promote the flow of information and analysis. Nowhere is this dialogue more challenging than at the intersection where law and science interact in the form of patents. When the subject of the case is wrapped in complex and unfamiliar terms, it is tremendously difficult for legal actors to grapple with the theoretical content of the dispute. There is a temptation to parrot language from the briefs rather than wrestle with and triumph over the essence of the problem and its implications for the unfolding legal doctrines.

Communication at the intersection of law and science will always be tremendously challenging. Nevertheless, there are elements of the current patent system that substantially exacerbate the problem. These include a deeply ingrained tradition in which patent language is written in complex codes and an inclination towards increasing structural insularity for the courts that hear patent cases.

Given the challenges of effective dialogue at the law and science interface, the law should move towards requiring that patent drafters describe scientific and technological issues in plain language, wherever possible. Plain language patents will not solve the myriad of problems involved in patent interpretation. Nevertheless, at this critical juncture where law and science must interact, appropriately structuring the dialogue will be essential for ensuring the adequate unfolding of legal doctrines.

Keywords: patent, patents, plain language, language, legal theory, legal reasoning, expert courts, federal circuit, intellectual property

Suggested Citation

Feldman, Robin, Plain Language Patents (May 30, 2008). Texas Intellectual Property Law Journal, Vol. 17, p. 289, 2009. Available at SSRN: https://ssrn.com/abstract=1731651

Robin Feldman (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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