January 29, 2007
Patent Claims as Statutes?
One of the things that intrigues me is the oft-made comparison between patent claims (invention patents, not land patents), and statutes. Two students and I are writing an article that I'm about to get elbows-deep in, about the validity of the comparison and, if so, what we can learn from it. I realize it's the intersection of two already-obscure, seldom-travelled roads, but if you have thoughts about it and want to share, please do so, here or e-mail me.
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Sounds like an interesting, and much-needed, project.
One thing I've wondered about, in the context of the claim/statute comparison, is the proper response to absurdity in these two different areas. The absurdity doctrine in statutory interpretation remains important, even if some (e.g., Prof. Manning) would contest its propriety. In the last five years, it seems (to me) that the Federal Circuit has moved strongly against the notion that an absurd claim construction can be avoided; instead, the claim is simply construed with the absurdity, and whatever consequences may follow ensue (e.g., impossibility of infringement, as a practical matter; or inoperability; etc.). It would be interesting, first, to verify my sense of the Federal Circuit cases; and second, to provide a theory, if there is one, that explains why an absurdity doctrine for statutes makes sense and a refusal of absurdity-preventing constructions in patent law also makes sense. Of course, perhaps the better view is that patent law's refusal of an absurdity doctrine points the way we should take with statutes (or vice versa).
Posted by: Joe Miller | Jan 29, 2007 7:02:14 AM
Thanks, Joe. You've earned mention in a footnote!
I just helped on an appeal to the CAFC, which we lost, and the court's interpretation is imho wrong and we argued that it was nonsensical -- yet, we lost.
Maybe I'll use that case as an example of the failure of the court to take in absurdity! :-)
Posted by: David Hricik | Jan 31, 2007 5:25:07 AM