By: Dr. Ken Broda Bahm –
Okay, that is a deliberately provocative title, but I mean it literally: words don’t have meaning any more than scissors have cut paper. Meaning isn’t an inherent or immutable attribute or possession of a word (something it “has”), but is rather an effect of the word when used in a particular context (something it “does”). What we like to think of as a “definition” is a selective view of the work that words do or ought to do in a particular context. In the case of patent litigation, where meaning is everything, it is strategic and helpful to your fact-finder to conceive the work that words do as a verb (“to mean”) rather than as a noun (“meaning”). This basic approach has some very important practical implications for the patent litigator who is looking for clear and reasonable ways to argue for the superiority of one meaning over another. So in this post, I’d like to unpack that perspective a bit, and sketch out some of the main ways of advocating your definitions in patent litigation.
We are used to thinking of definitions somewhat simplistically, and as something that we as language users have a choice over. This is the view expressed somewhat tongue-in-cheek in Lewis Carroll’s Through the Looking Glass:
“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.”
The naive view in this case is Humpty Dumpty’s: meaning isn’t a simple choice, made and imposed by the language user. And, Alice’s point is well-taken: we should question whether words can be “made” to mean at all. This is also the view championed by the early 20th century Austrian philosopher of language, Ludwig Wittgenstein, who also contributed to the “ordinary language philosophy” that still influences the call for plain language jury instructions. Wittgenstein first coined the phrase “meaning as use” in opposition to the idea of meaning as representation or simple choice. To Wittgenstein, the most productive course was to not assume that meaning corresponds to some psychological or objective entity that accompanies word use, and to instead focus on the work that a word does, or potentially could do. To use an analogy, if one asked a chess player what the knight “meant,” the most useful answer that the player could give would not be to say that it is a varnished piece of wood of a specific shape, nor to say that it is a crude image of a medieval soldier. The best answer would be to describe the move that the knight can make and its role in the game. That analogy holds for language too. What is most useful to the advocate isn’t description, but function. While we can’t simply chose meanings, we can base our arguments on the benefits or harms of the possible moves we can make with language.
And speaking of moves, in recent weeks some Congressional Republicans have been criticized and lampooned on The Daily Show, for example, for advocating a redefinition of “rape” (as it relates to publicly funded abortions) to include only forceable sexual assault. While the reality behind that proposed policy, abandoned after a firestorm of criticism, may be a little more complex than simple redefinition, part of the public response reflects the belief that playing with word meanings is just a form of legerdemain.
But ‘playing with words’ in some form or other is exactly the patent attorney’s bread and butter. Years and fortunes can in fact be spent litigating over the precise meaning of a phrase like “contiguous overlapping region,” if that is what potentially links a patented product with an infringing product. Experienced patent attorneys know that there isn’t a, per se “true” meaning of that phrase, but there are interpretations that are more or less advantageous. While you can’t define “cat” as “dog,” (or “overlapping” as “unconnected”), there is a spectrum of reasonable meanings within which patent litigators, or anyone else who advocates based on definitions, could argue for or against a given interpretation. The following is a brief and incomplete list of argument types that can underlie your definitional advocacy. Readers who aren’t patent attorneys will have to forgive my examples (as dense as they are, this really is how patent cases sound).
Within a spectrum of reasonable meanings, a given meaning would be better if it is:
1.) Simple. The easiest definition (the one that makes the fewest assumptions, the most economical explanations, and the greatest comprehension) is arguably the best. After all, the purpose of language generally, and a patent specifically, is to convey understanding. So simplicity is an advantage.
“Overlapping region,” most basically means that one surface must be on top of the other. It does not get simpler than that.
2.) Complementary. Both in patents, as well as in the rest of the communicated world, a given word or phrase is never interpreted in a vacuum. To the extent that your proposed definition fits well with the other accepted terms within the patent, that is an advantage.
The main benefit of this interpretation of “overlapping region,” is that it gives force to the other terms in the description. Alternately, if we were to accept the argument that “overlapping” also means “in direct contact with,” then this understanding would moot the meaning of the term “contiguous” which also appears in the description.
3.) Functional. Ultimately, the preferred meaning for a word or phrase should be functional, in the sense that it should answer all of the questions that need answering.
If we accepted an interpretation of “overlapping region” that required the entire surface of the two pieces to be in direct contact, then that would raise the question of what we would call it when the upper surface is generally, but not always, above and in contact with the lower surface. We would have to invent some word other than “overlap” to describe anything that is less than 100% overlap.
4.) Inclusive and Exclusive. We know that it is quite possible, and even common, that even post Markman hearing, there is quite a bit of wiggle room on patent language. But a good definition shouldn’t be open-ended, but should both include and exclude possible meanings.
When the “overlapping region” simply posits one region on top of the other, regardless of the degree of contact, then every example of prior art is included. What is excluded is any product where the two layers abut or touch, without one being clearly above the other.
5.) Clearly Differentiated (‘Bright Line’). Instead of a fuzzy gray area marking the border between a concept and its absence (“overlapping” versus “non-overlapping” in this case), there should be a bright line of separation.
If “overlapping region” is determined by the point of contact, rather than by the position of one surface over the other, then there is ambiguity. Obviously, there is contact at the surface, but what about one micron above or below the surface, is that still within the “overlapping” region? With their definition, you can’t be sure where the “overlap” starts and stops. Alternately, an interpretation that just requires one surface to be above the other, you know that both surfaces, including their complete depths, are within the “overlapping region.”
Of course, this list could go on, and every patent case will have its own tailored list. But ultimately, it is about arguing for the advantages rather than the correctness of your interpretation. If it was the case that the word “has” meaning that you are simply trying to uncover, then your argument would be more basic, but ultimately less realistic. Instead, your word “does” meaning, as a part and parcel of your own advocacy.
Photo Credit: chrislugosz, Flickr Creative Commons