Writing patent claims: ugly poetry

Elsewhere on the site, I have posted a quote asserting that claim language is the ugliest poetry that man has ever conceived. The reason why I refer to claim drafting as poetry is that it doesn’t read like ordinary English, and is intended to carve protection beyond a single desirable version of the invention.

Claims are designed to refer to an invention in terms of its broadest reasonable scope. The reason for this is that patents are designed to protect an invention, not just from direct imitation, but also from its disclosure causing the subsequent manufacture of reasonable alternatives, rather than deterring them.

For example. Imagine a world where a beer stein never existed, but where
cups, bowls, and cylindrical, insulated, beverage containers (designed to retain many servings of a liquid for long-term retainment) existed. Rather than saying, “I claim a beer stein,” a set of claims should instead say something to the effect of:

“I claim…
[Claim 1] a drinking vessel, comprising a predominantly conical cross- section, having an open area defined by circumfence at one end, and a closed area defined by a circumference at the other end, wherein said drinking vessel is capable of receiving at least a single serving of a liquid, and tailored to retaining said liquid against spills, slip from a user’s grip, insulation from ambient environmental conditions, but tailored to temporary retainment of said at least single serving, during a single instance of use.

Subsequent claims could point out that:
– the open area could be at the top,
– the closed area could be at the bottom,
– the top area could be of less surface area than the bottom,
– the anti slip qualities could be provided by minimizing condensation formation, by use of an insulated material, such as ceramic, and
– by use of a tall handle large enough to receive all four non-thumb fingers of a user’s hand,
— located far enough away from the body of the drinking vessel that condensation could not compromise quality of grip, and
– that the open-end could be further insulated and less spillable by use of a cap
—that is easily articulable without compromising grip from the said tall handle
——by use of a thumb-flip-able lever located above the said tall handle,
among others.

Many of those aspects can be claimed separately from one another, while others are wiser to claim in a narrowing fashion in a chain of nested and depending set of claims.

Note that at no point in the first claim did I suggest limiting the claims to:
– beer,
– cold beverages,
– clinking together, or
– any of the narrower matters indicated as potentially being claimed in subsequent claims.
Note also that:
– the first claim does not rule out alternative materials,
– the drinking vessel might actually be of identical or bigger area at the top than at the bottom,
– its contents might be as large as many servings, such as might approach a pitcher or an elephant-sized liquid serving,
– a user might be a monkey or even a dog or a bear, and
– ambient conditions might be rain or pressure or smog, rather than a mere temperature differential.
The reasonableness of claiming such scope would likely be confined to the extent that the rest of the application disclosed or at least reasonably supported claims to such matters.

However, inability to support claims to the enormous scope that I just suggested, or any degree a scope at all, some degree of scope for such a claim might be reasonably supported in a replacement or subsequent application of some sort. Also, for not having limited such a first and independent claim, future understandings of reasonable estimations of a person having ordinary skill in the art, in view of such a disclosure, might be considered a sufficient teaching of how to make things within the field of art. Improving the ordinary skill level in a field of art may help to prevent the availability of a grant of patent for subsequently invented alternatives by potential competition. So well crafted claims might buy and applicant a greater degree of scope then what could be enforced buy directly claiming infringement.

The present nature of practicing avnew technology improves the odds of protecting a claimed invention from imitation in the marketplace because the open use informs the public of a new state of the art, and therefore makes it more difficult for another emerging use or new version of technology  to obtain a patent. If you can’t protect an invention directly, careful language might still protect the invention by educating the field of art as to how to otherwise make the reasonable alternatives, so long as doing so doesn’t leave the invention open to imitation by otherwise existing market players, ones that would not necessarily need a patent in order to carve out protection in the marketplace.

All of that, managed almost literally by the mere language of a claim, which really does refer to a legitimate description of a beer stein. Selection of the right language and reasonable estimation of the supported embodiments from the disclosure, in light of design variations within a relevant field of art, are what render useful legal scope of protection, not any particular market value of the mere ideal embodiment that would be ideal to sell.

Referring to a specific thing by reasonable understanding, but legitimately protecting against potentially wide-ranging designs? That sort of versatility in meaning, in the minds of an entire population, strikes me as very high poetry, indeed.

Ghastly to read, though.