Dennis Crouch asks why so many patents seem indecipherable and what can be done about it? Good questions, indeed.
Always willing to speak the truth, however unpleasant it may be, I’m here to provide my answers.
In reality, this is just a variation on the ancient question why supposedly silver-tongued lawyers write in the convoluted, asinine way they do. The answer is, bitter experience demands it.
Consider: You write a simple contract wherein Bob Jones agrees to sell his house and Fred Smith agrees to buy it. All’s well until Bob claims that “house” doesn’t include the unattached garage — and the court agrees. (Hmmm, better spell that out clearly next time…) Later, someone else says that “house” and “garage” don’t include the tree-house in the back yard — and again the court agrees. You get the idea. Nothing changes when patents are involved — prudence and bitter experience suggest you better spell things out in detail.
Until that, too, trips you up.
The dirty little secret of patent prosecution is that clear statements in a patent application are anathema and the clear sign of a rookie drafter. The rules of thumb are legion: “Never use the word ‘invention.'” “Never say ‘is.'” “Don’t call a resistor a resistor — call it ‘an impedance means’ instead.” The ironic joke is that the language used in patents is supposed to be that of persons “skilled in the art,” but I have never once heard a real engineer ask for “an impedance means” or suggest replacing the “active element that preferably, but not necessarily, takes the form of a three-terminal semi-conductor or similar device.”
But the real blame for this lies not with patent prosecutors but with a judiciary that, on the one hand, claims it is fully capable of deciding highly technical cases, but on the other refuses to develop the skills needed to do so. As long as courts can be bamboozled into thinking that manganese and magnesium are the same, and that adding 2 plus 3 is somehow completely and materially different from adding 3 plus 2, some lawyers, with the full encouragement of their clients, will continue doing so. And those who have learned the hard way what can happen when they naively assume common sense will prevail, soon learn not to make the same mistake twice. The result is the ineffable twaddle that now passes for the “full, clear, concise, and exact terms” required by law. The courts simply don’t require clarity and they punish it when it appears.
On a related subject, why do we still follow the nonsensical rule that a patent claim must be a single sentence? (And yes, I’m aware that it’s supposed to be the object of a sentence beginning, “I claim…”) Wouldn’t it be a lot better for a patentee simply to say in paragraph form, “My invention is this. It includes this. It doesn’t include that. It differs from the prior art in that it has this. I consider these to be equivalents.”? Why the Patent Office insists on an obscure rule that probably stopped making sense shortly after it was adopted has always left me baffled.