Academic

Feldman on Bounded Adaptation & Plain Language Patents

By Lawrence Solum

Robin Cooper Feldman (University of California Hastings College of Law) has posted Plain Language Patents (Texas Intellectual Property Law Journal, Vol. 17, p. 289, 2009) on SSRN. Here is the abstract:

Law is a process of Bounded Adaptation. The law that exists at any given moment is constantly driven to adapt to changing circumstances within the framework of what has gone before. The boundaries of that framework are policed by the necessity of articulating an interpretation in a way that gains general acceptance. It is the need to effectively articulate a common logic that mitigates the distortion of personal perspective. This articulation and confirmation is essential in a system that claims allegiance to precedent, and it reinforces our ability to serve that allegiance.

This process of Bounded Adaptation cannot proceed effectively without an adequately structured dialogue that will promote the flow of information and analysis. Nowhere is this dialogue more challenging than at the intersection where law and science interact in the form of patents. When the subject of the case is wrapped in complex and unfamiliar terms, it is tremendously difficult for legal actors to grapple with the theoretical content of the dispute. There is a temptation to parrot language from the briefs rather than wrestle with and triumph over the essence of the problem and its implications for the unfolding legal doctrines.

Communication at the intersection of law and science will always be tremendously challenging. Nevertheless, there are elements of the current patent system that substantially exacerbate the problem. These include a deeply ingrained tradition in which patent language is written in complex codes and an inclination towards increasing structural insularity for the courts that hear patent cases.

Given the challenges of effective dialogue at the law and science interface, the law should move towards requiring that patent drafters describe scientific and technological issues in plain language, wherever possible. Plain language patents will not solve the myriad of problems involved in patent interpretation. Nevertheless, at this critical juncture where law and science must interact, appropriately structuring the dialogue will be essential for ensuring the adequate unfolding of legal doctrines.

Full post as published by Legal Theory Blog on December 28, 2010 (boomark / email).