This Article constructs a linguistics-based framework to consider patent claim construction and demonstrates that the often-told story that claim construction is broken is, in fact, wrong. Rather, it is the underlying conversations that comprise the patent acquisition process that are to blame. In Part I of this Article, I use linguistics to describe the characteristics of everyday conversation, as well as how it is interpreted. In Part II, I explain what patent conversations look like and how they are similar to and different from everyday conversation. In Part III, I apply the theories of interpreting everyday conversation to patent conversation. Breaking from tradition, I assert that claim construction is not broken; much claim construction methodology aligns with how we interpret everyday conversation. Claim construction is as good as it can be, given linguistic limitations. The problem is the patent conversation itself, specifically the communications that occur between the inventor and the Patent Office that give rise to an issued patent. I close, in Part IV, by explaining how cooperation can-and should-be injected into the patent conversation and how a cooperative patent conversation leads to improved claim construction.
Kristen Osenga, Cooperative Patent Prosecution: Viewing Patents through a Pragmatics Lens, 85 St. Johns L. Rev. 115 ( 2011).