The Interpretation-Construction Distinction in Patent Law

85 Pages Posted: 16 Mar 2013 Last revised: 1 Jan 2015

Tun-Jen Chiang

George Mason University School of Law

Lawrence B. Solum

Georgetown University Law Center

Date Written: 2013

Abstract

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims.

In this Article, we explain why this diagnosis is fundamentally wrong. Claims are not often ambiguous, and linguistic ambiguity is not a major cause of the uncertainty in patent law today. We shall explain what really causes the uncertainty in patent rights, how the erroneous diagnosis of linguistic ambiguity has led the literature off-track, and what will get us back on track to solving the uncertainty problem.

Keywords: patent claims, claim construction, claim interpretation

JEL Classification: O34

Suggested Citation

Chiang, Tun-Jen and Solum, Lawrence B., The Interpretation-Construction Distinction in Patent Law (2013). Yale Law Journal, Volume 123, 2013, pp. 530-614; Georgetown Public Law Research Paper No. 13-023; George Mason Law & Economics Research Paper No. 13-69. Available at SSRN: https://ssrn.com/abstract=2234193

Tun-Jen Chiang (Contact Author)

George Mason University School of Law ( email )

Lawrence B. Solum

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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