Judicial Capacities and Patent Claim Construction: An Ordinary Reader Standard
56 Pages Posted: 14 Aug 2013 Last revised: 8 Nov 2015
Date Written: September 20, 2013
Patent claim construction is a mess. The Federal Circuit’s failure to provide adequate guidance has created significant problems for the patent system. The problems with claim construction result from the Federal Circuit’s inability to resolve whether claim terms should be given (1) the general, acontextual meaning they would have to a skilled person in the field; (2) the specific meaning they have in the context of the patent; or (3) some combination of the two. Largely missing from the claim construction debate is consideration of what approach is best suited for the generalist judges who must implement claim construction. This Article fills that gap, concluding that existing approaches are difficult, costly, and error-prone for generalist judges because they force the judge to step into the shoes of a scientist. It is time to abandon the legal fiction that claims should be construed from the perspective of a skilled person in the field and instead construe claims from the perspective of an ordinary reader discerning meaning from the context of the patent. The ordinary reader standard is more familiar to generalist judges, easier and cheaper to apply, and less error prone. Perhaps surprisingly, it is also consistent with the nature of claim construction. Rather than eliminate technical context, an ordinary reader standard focuses on the technical context that was provided by the patentee, is publicly-available to everyone, and is by definition at the skill level, in the field, and at the time of the invention. And rather than ignore the audience for patent claims, it provides a common ground for the varied consumers of modern patent claims: skilled people, business people, patent examiners, lawyers, and judges.
Keywords: patent, claim construction, judges
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