Special Envoy to the Dictionary Wars
Over the last decade, the number of lawsuits over contested patents has doubled. These court battles can cost a mint to fight and even more to lose. They deprive the company holding the patent of the certainty it needs to make productive use of the invention.
Often, the dispute comes down to words, to the definitions of very specific terms in the patent. The result is that there are now "dictionary wars" over what things mean. Plaintiffs produce one dictionary with a definition they find favorable. Defendants muster another.
About a third of all patent appeals are reversed on appeal because the higher court judges disagree about how the lower court construed the patent, often coming to a different conclusion about what the words in the patent should mean. That's very much the issue, for instance, in Vonage Holdings' appeal this spring of a federal court ruling that the Internet telephone company violated three patents owned by Verizon.
Now, a young lawyer in Milwaukee has suggested a solution that could achieve a truce in the dictionary wars. Justin E. Gray, just one year out of Northwestern University School of Law and now an associate at Foley & Lardner in Milwaukee, has called for the creation of a "Dictionary of Common Patent Term Usage."
Gray suggested a kind of online Wikipedia for patent terms assembled from the expertise of specialists in a range of technical fields. Some of the definitions would be from the arcane arts of engineering and science. Some would be general terms, like the word "adjacent," he told me. Does adjacent mean "close to" or "actually physically touching" or something else?
Unless patent applicants explicitly provide another definition for a term, the online dictionary would become the final reference. It would become the default dictionary used by patentees, the U.S. patent and trademark office and the courts, Gray explained in debuting his proposal in an article for IP Law 360, an online newswire about intellectual property.
"The Dictionary of Common Patent Term Usage would minimize, if not eliminate, all 'dictionary wars' that occur both in district and the Federal Circuit," he wrote.
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Posted by: blasher | May 17, 2007 3:33 PM
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