Cooperative Patent Prosecution: Viewing Patents through a Pragmatics Lens
Osenga, Kristen, St. John's Law Review
Conversation is easy. We converse with other people daily. Some of the communications are oral, occurring face-to-face or over the telephone. Other conversations occur over a chain of e¬mails or in real time, using instant messaging or chat room technology. Sometimes the content of conversation is important and informative. Conversations can propel business deals, peace negotiations, or medical decisions. But other times the content is not important at all; it may be mundane or even banal. Small talk about the weather, the stock market, or local sports teams is less about content and more about the social relationships it helps develop and maintain. Regardless of its purpose and regardless of its style, we use language to converse all the time without much ado.
Patent law, by contrast, is hard. The task of claim construction-interpreting the words that patents use to delineate the boundaries of the patentees' exclusive rights1-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,"2 "a mongrel practice,"3 even "impossible,"4 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.5 It is little wonder that claim construction has drawn much criticism from scholars.6 Claim construction may well be the most difficult and misunderstood aspect of patent law.
So why is there so much ado about claim construction? Some say that claim construction is hard because the information conveyed by the words is of great consequence. But this alone cannot explain why claim construction is the subject of so much discussion; there is an awful lot of important information conveyed in everyday conversation as well, but without all of the trouble that accompanies claim construction. Another explanation is that patent claims include scientific jargon that is nearly impossible to understand. But the reality is that, more often than not, parties litigate over simple words being used just as they would be in everyday conversation. Words like "a," "or," "to," "on," "about," "including," and "through" have been the subject of claim construction disputes.7 For the most part, patents are like everyday conversation, relying on language to convey information from one party to another and serving as an exchange of information between an inventor, the Patent Office, and the public.
Despite the significance of language and communication in patent law, and law generally, legal scholars have shown surprisingly little interest in linguistics-the study of language and how we understand it-and even less interest in pragmatics-the study of how context enriches content.8 This is odd, given the importance of interpretation and construction in all areas of the law.9 The few scholars that have adopted a linguistics-based framework to examine legal communication have focused on statutory language and its relation to everyday conversation.10 But despite the volumes of scholarly analysis devoted to claim construction thus far, no one has considered the implications of linguistics theory in intellectual property law.11 It is time to examine patent claim construction through a conversational linguistics lens.
In particular, by viewing patents as conversations, we can take advantage of the rich body of work that has been developed in linguistics to understand more clearly the source of indeterminacy in patent claim construction. Various doctrines of claim construction make perfect sense when viewed through the conversation lens. And a linguistics-based approach shows us that, contrary to mainstream patent literature, the existing process for claim construction is actually pretty good. In fact, given linguistic limitations, claim construction is about as good as it is going to get. …