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The Difficulty and Complexity of Patent Law

Courts recognize how difficult it is to get patent law right. As I noted here, quoting the Supreme Court:

“[t]he specification and claims of a patent… constitute one of the most difficult legal instruments to draw with accuracy ….” Topliff v. Topliff (1892). While this would appear to be a compliment to the skills of patent practitioners, it is really a testament to the inherent subjectivity and ambiguity in patent law (and a bit of a commentary on the technical illiteracy of most attorneys — they’re a bit overimpressed with engineer-attorneys: after all, they can actually do basic algebra!).

Or as the CAFC said in the 1988 Laitram case:

This appeal again illustrates one of the many difficult dichotomies that lurk in the lacunae of patent law. On one side rests the very important, statutorily-created necessity of employing the clearest possible wording in preparing the specification and claims of a patent, one of “the most difficult legal instruments to draw with accuracy.”  On the other lies the equally important, judicially-created necessity of determining infringement without the risk of injustice that may result from a blindered [sic] focus on words alone.

And recently, as noted in a WSJ article:

The court’s defenders say the legal issues the court is wrestling with, like when lines of computer code or feats of genetic engineering should be given patent protection, are among the most difficult in all of U.S. law. In some instances, they say, the Supreme Court has made things worse, not better, with hard-to-follow rulings of its own.

See also Kristen Osenga, “Cooperative Patent Prosecution: Viewing Patents Through a Pragmatic Lens“:

Patent law … is hard. The task of claim construction—interpreting the words that patents use to delineate the boundaries of the patentees’ exclusive rights—is one of the most important aspects of patent law but also one of the most difficult. Judges have called claim construction “a special occupation,” “a mongrel practice,” even “impossible,” and for good reason. Interpretation of the terms used in a patent remains basically a crap-shoot, with the United States Court of Appeals for the Federal Circuit reversing trial court claim construction determinations in 33% to 50% of patent cases. It is little wonder that claim construction has drawn much criticism from scholars. Claim construction may well be the most difficult and misunderstood aspect of patent law.

These issues are difficult mainly because they are nonobjective. You have political climbers appointed by politicians and their cronies to be federal “judges” who are “tasked with” the job of trying to pretend to be judges (people who adjudicate disputes in an attempt to do justice) while really simply interpreting words written down on paper by a bunch of legislators.

For more on the deficiencies of treating legislation as law, see my post Another Problem with Legislation: James Carter v. the Field Codes.

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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.