In the case the Federal Circuit issued the decision that really drives home exactly how important it is to choose word carefully in order to make sure your words carefully in order to make sure your words exactly mean what do you actually want them to mean. Indeed no article on precise language can ever be complete without the nearly obligatory reference of Chef America. In this case the Federal Circuit issued a decision that really derives home exactly how important it is to choose your word carefully in order to make sure your words mean exactly what you actually want them to mean.
Citing an Example
As U.S. Patent No. 4,761,290 explains, efforts to provide dough products that can be finished when cooked to a light,flaky, crispy texture after having been frozen have proven illusive. Of course you might expect, the inventors of the ‘290 patent came up with a solution, filed in the patent application and were ultimately awarded a aforementioned patent.
In the very famous Chef America case, which discusses the’290 patent, the Federal Circuit had to interpret the meaning of patent claim phrase “heat the oven to the temperature in the range of about 400 F to 850 F, the Patent owner had a useless patent”. If you actually heated the dough to between 400 F to 850 F as the patent claim explicitly required, the resulting output would approximate a charcoal briquette, but that want the Federal Circuit problem. The words chosen had a specific and undeniable meaning and, therefore, a charcoal briquette was unfortunately what was protected; at least unfortunately from the patent owners perspective.
It is easy to have sympathy for the inventors and even for the patent practitioners who drafted the patent application. A method claim such as the claim at the issue in the’290 patent are essentially written like one would write a recipe. That is how method claim are concieved and drafted. And if someone gives you a recipe you would likely assume the temperature they tell you is the temperature to heat the oven because generally when the recipes are conveyed that is pretty standard understanding, unless a “internal temperature” is specified.You might also rather easily assume the claim as written as expressing oven temperature if you are familiar with cooking at all because when giving internal temperature they are universally lower, typically much lower, than the temperature setting.
The problem, however is when you have such sympathy it is because you are filling in voids with assumptions. When drafting the patent application it is always the best policy to never assume anything. It is dangerous to assume the reader will fill any ambiguous holes in the manner you desire, and as here, if what you literally say it is clear you run the real possibility that an assumption on your part will wind up meaning something very different than you intended because you did not take the time to go the extra step to remove all your doubts. Sometimes inventors joke that it seems that patent attorneys and patent agent get paid by the word, and perhaps at all the time things do get verbose. What is more likely however, is all those extra words that seem unnecessary are there to guarantee that what is being said is what will be understood to the exclusion of anything else. Make no assumption. Choose your words carefully in order to convey the most precise meaning.
But how would you accomplish the task ?
- Whenever you write an important document like a patent application you must draft it and then put it down and walk away, perhaps for a day or two. Then came back and re-read what you have written. All the mistake you have made will be much easier to identify having a little space or time .
- When dealing with the topic of picking and using the right language to describe an invention in a patent application it is also worth observing that having access to both a dictionary and thesaurus is an absolute pre- requisite. The words chosen had a specific and undeniable meaning and, therefore, a charcoal briquette was unfortunately what was protected; at least unfortunately from the patent owners perspective.
