This Article argues that patent claim construction should instead track the way in which we, as readers of a language, attempt to understand what is being conveyed via the written word. First, there is a base level of conventional understanding from which all interpretation starts, an understanding that either a priori exists based on our earlier encounters with the word or is obtained from a dictionary in cases in which we lack previous knowledge. Second, from this conventional understanding, we construct the actual meaning of the term based on a number of linguistic clues. These clues are both internal and external to the language we are interpreting. Internal linguistic clues include syntactic hints divined from the grammar and sentence structure of the language to be interpreted. External linguistic clues include situational pragmatics, or the use of non-linguistic factors, such as the underlying knowledge of the interpreter that aids understanding.
Part I of this Article provides a background of the patent claim. Part II discusses the history of the Federal Circuit's claim construction jurisprudence, from Markman v. Westview Instruments, Inc., the Supreme Court opinion turning the reins of claim construction over to judges, to Phillips v. A WH Corp., the en banc Federal Circuit case that was intended to clarify the process of claim construction, but failed to do so. This section also describes and analyzes a number of claim construction canons, the auxiliary guidelines for performing the claim construction process. Finally, Part ill looks briefly at linguistics in general and then proposes the use of linguistic techniques as a preferred methodology for claim construction. This section also considers the conjunction of the proposed linguistic-based methodologies with existing claim construction canons to develop a complete claim construction process.
Kristen Osenga, Linguistics and Claim Construction, 38 Rutgers L. J. 61 (2006)