Patent Notice and the Trouble with Plain Meaning

Boston University Law Review, Vol. 96, pp.1093-1116, Forthcoming

U of Michigan Law & Econ Research Paper

24 Pages Posted: 24 Jun 2016

See all articles by Margaret Jane Radin

Margaret Jane Radin

University of Toronto - Faculty of Law; University of Michigan Law School

Date Written: May 20, 2016

Abstract

In their book, Patent Failure, James Bessen and Michael Meurer took the position that notice of the scope of a patentee’s property right is usefully analogous to notice conveyed by real property boundaries. In this essay I argue to the contrary that the idea that patent claim language could be rendered determinate enough to justify an analogy with physical fences or metes and bounds is illusory. Patent claims raise the question, in a way that fences do not, of how words “read on” objects in, or states of, or events in the world. I take a small detour through the language theory of Quine as backdrop to my argument that there is no such thing as plain meaning, at least not in situations involving innovative products and processes where there is money at stake. I draw on three landmark patent cases — Markman, Phillips, and Festo — to illustrate this basic point. In my concluding Postscript I bring the big picture into play. The costs of providing better notice, even if that were possible, might outweigh the gains. Plus, even if the analogy with physical boundaries and the commitment to plain meaning were not illusory, such rigidity in interpreting claims would undermine a significant feature of the patent system: the flexibility to reward breakthrough inventions proportionately to their importance.

Keywords: Patent, Claims, Interpretation, Notice

Suggested Citation

Radin, Margaret Jane, Patent Notice and the Trouble with Plain Meaning (May 20, 2016). Boston University Law Review, Vol. 96, pp.1093-1116, Forthcoming; U of Michigan Law & Econ Research Paper. Available at SSRN: https://ssrn.com/abstract=2800015

Margaret Jane Radin (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
505-314-6516 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
270
rank
110,713
Abstract Views
910
PlumX Metrics