Law and Tech A weblog on Law and Technology

18Mar/090

Patent Drafting: should highly technical language require a translation?

Part of my law school experience is to assist in mining patents and categorizing them into topics.   I have the most difficult time 1) searching for relevant patents, 2) wading through the search results to confirm relevancy, and 3) categorizing said patents based on keywords.    I can appreciate why patent landscape analysis is farmed out to specialized firms.

The biggest issue when searching for relevant patents, or even simply reading a patent to determine its scope,  is how patents are drafted. Patent drafters are increasingly coming up with creative (or shady) ways to claim subject matter to ensure broad protection, overcome prior art or avoid 101 rejection.   This is how a "vaccine" becomes an "immunological composition for treating and preventing a disease selected from the group consisting of yada, yada, and yada."   This is also how it becomes difficult to recognize a relevant patent in a landscape when one is searching for vaccine patents and ends up missing all of the immunological compositions.

Surely a patent applicant can become his/her own "lexicographer" (or lexinographer if you want to play that game) but it seems a patent can be drafted around this or that to the point of absurdity.  Of course, one could look to the specification to define the terms in the claims, but from a patent searching perspective, that is not a cost effective strategy.

This seems to become more of an issue in highly technical fields where word substitutions are not intuitive to the nontechnical person.  Certainly, in a mechanical patent, the word "fastener' in  a claim could understandably be substituted for nail or screw.  But is it so obvious to the lay person that "an epitope binding ligand" is synonymous with "antibody?" I don't even want to get into the frustration of decoding that particular example because it actually translates to "a something that attracts antibodies to bind binding binder."

Perhaps technical terms are inherently specific and the only way to broaden them or strategize with them is to make them obscure.  And the solution to this obscurity is for the reader of the patent to become more versed in the art of such obscurity in order to understand what a patent is claiming?  I don't know. Maybe there should just be a thesaurus of synonyms for commonly used words in a specific technical field that could be consulted.  I know that the Word thesaurus has made me a more creative wordsmith.

Here are some fun terms that could define a vaccine: "a prophylactic," "a therapeutic," "an immunological preparation," "a compound for eliciting immune response," "a compound for eliciting neutralizing antibodies," "a polyvalent composition," "a conjugate."

Posted by KWicks

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