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Wednesday, 28 February 2018

Do patents and literature have something in common?

Patents and literature would seem to have nothing in common. Kat friend Dr. Aloys Hüttermann suggests that this may not be necessarily so.

Do patents and literature have something in common? At first glance, this seems like a strange question. The famous sociologist Niklas Luhmann considers literature (as well as art) as “autonomous”, i.e., systems which have no other purpose than themselves. In other words, one creates a work of art or literature for no other purpose than the act of creation itself. On the other hand, no one would consider a patent claim to be autonomous; a patent is clearly written for a purpose, which is to obtain a monopoly for an invention. Secondly, there is surely a great difference between a text such as that by Shakespeare-- “What's in a name? That which we call a rose, By any other name would smell as sweet,“ or by Heinrich Heine-- “Ich weiß nicht was soll es bedeuten, dass ich so traurig bin” (from the Loreley: "I don't know what it can mean that I am so sad"), with a text that starts “A system for transmitting an electronic signal, comprising...."

On the other hand, perhaps this question is not so strange at all. For sure, the rationale for literature is aesthetic, while that of patents is commercial. Still, like literature, patents are ultimately the subject of interpretation, either by a patent office or a court. As such, it can be asked: Can we learn from literature something valuable for the interpretation of patents? May the interpretational (= juridical) tradition of the patent jurisprudence of different countries be compared with different approaches concerning literature?

In attempting to answer, let's begin with the different approaches or theories concerning literature. Sabina Becker, from the University of Freiburg, in her classic bookLiteratur- und Kulturwissenschaften: Ihre Methoden und Theorien” ("Literal and cultural sciences: Their methods and theories"), distinguishes between no less than nineteen different approaches or theories towards literature. Generally speaking, one can classify them into three categories, following the observation by Terry Eagleton from Lancaster University:
“Indeed one might very roughly periodize the history of modern literary theory in three stages: a preoccupation with the author (Romanticism and the nineteenth century); an exclusive concern with the text (New Criticism); and a marked shift of attention to the reader over recent years.“
In other words, literary interpretation has focused variously on the author, the text itself, and the reader.

Applying them to patents, it seems to this blogger that the last approach is not relevant, since, by definition, a patent has only one reader, namely the skilled person in the art. Of course one can question what this skilled person in the art, being a legal construct, reads in a given patent text, but an approach that asks what different impact a given text may have on various readers becomes irrelevant if there is only one reader. Assuming, therefore, that a "reader focus" is not appropriate, the question becomes: are there jurisdictions whose approach to patents can be seen as either either author-centered or text-centered?

If the author (i.e. the applicant) is the central figure, then--

- There would be liberal possibility of amending claims, and lack of description would be less of an issue. This is because it is the author’s intention and knowledge that counts and not so much what is written down in the specification.

- On the other hand, any comments or statements made by the applicant would surely influence the patentability or the scope of protection. This is because the thoughts and intentions of the author must be recognized.

- The first-to-invent principle applies, since the individual act of making an invention is essential for priority, with the race to the patent office beng of lesser interest.

If the (application) text is central, then--

- Lack of disclosure in the patent application would lead to refusal of the patent or the absence of any possibility to change the claims. This is because it is the text qua text that counts and not what the intention for which it was written.

- On the other hand, the file history or declarations of the inventors are less important, or wholly irrelevant, since the text is essential and not what the inventor/author thought about its meaning.

- For the same reason, only interpretation of the claims as such and as granted would be appropriate for interpretation in the context of patent infringement.

- First-to-file principle applies.

With that in mind, it seems to this blogger that that it can be said that the US tends to follow the "romantic“, author- centered tradition. To the contrary, Europe - and more or less the rest of the IP world, since many countries, especially in Asia, adopted their patent law from that of Germany - follow the text-based tradition, with the European Patent Office and the German patent courts being traditionally the strictest in this regard.

That said, it is interesting to note that recently each side seems to be showing an inclination to be influenced by the other’s tradition. Thus, the US has moved to a first-to-file system, while the EPO has issued the G1/15 and the Bundesgerichtshof overturned the very strict Kunststoffrohrteil decision in the Pemetrexed case. However, the different approaches, i.e., romantic author-centred US-tradition on the one hand, text-based European/Asian tradition, on the other, are still discernible and even somewhat striking. This might be another reason to explain the sometimes cosmic dissatisfaction that US patent scholars and professionals have with the rest of the world and vice versa – they simply emerge from very different traditions.

For more on this blogger’s thoughts on this topic, see Mitteilungen der deutschen Patentanwälte, 2013, 113, available in English, see here.

Photo in upper right by L.A. Pelton and is in the public domain.

Photo in lower left by Lienhard Schulz and is licensed under Creative Commons Attribution-Share Alike 3.0 Unported license.


maxdrei said...

Excellent piece, Neil. Many thanks.

But it is the other way around, is it not? Now that the USA has adopted FTF, a strict text analysis culture for the patent courts and then the PTO must inevitably follow.

Why did the USA switch to FTF though?

Aloys Hüttermann said...

Thank you for your comment! Yes it seems so as if the USPTO has started to leave the "romantic" way. However, I would think that at the moment the author-oriented tradition is very strong.

Why did the US switch to first-to file? I am not an US practitioned, but I was told that its simply for practicability reasons.

Maybe in ten years from now, however, chances are not too bad that the assumption that the US is author-centred is no longer valid.

THE US anon said...

"In other words, one creates a work of art or literature for no other purpose than the act of creation itself."

Only in some made up fairy tale world.

Entertainment is a serious business. The creation therein has FAR more purpose than the pithy cliche offered suggests. This level of Pollyanna simply eviscerates the credibility of the piece.

Michael Madison said...

Further to this topic, I recommend the following article: Dan L. Burk and Jessica Reyman, Patents as Genre: A Prospectus, 26 Law & Literature 163 (2014). Full text available via

Existential threat said...

I like this experiment to make patent attorneys more culturally aware. It would be great to see more radical commentary on the meaning of patent texts, such as Derrida's idea that the original complexity of text cannot ever be known (i.e. deconstruction and, and how this may relate to a patent.

Also a feminist interpretation of patent claims would be fascinating, or interpretation by a dialectical method (

However I guess also that perhaps patent attorneys are not ready for their claims to be places under such scrutiny, and the patent system as a practical matter could probably not handle such complexity. The existential implications would be great if we suddenly realised that our claims do not necessarily mean what we thought they meant, and that language was perhaps never capable of capturing what was meant.

Closed shop (monopoly) said...

Michael Madison I like this bit of your citation:

Thus, the casual commentator may wonder why patent claims are not couched
in “plain language,” or for that matter even in some more standardized technical
parlance. The cynical (and somewhat tautological) answer might be that the peculiarities
of the patent document exist in order to perpetuate the community of practice
that exists to perpetuate the patent system. No doubt there is an element of
truth in viewing the more impenetrable features of the document as selfperpetuating
boundary markers. But we believe this is only a partial answer, and
there is a good deal more occurring in the interplay between patent text and patent

THE US anon said...

Applying them to patents, it seems to this blogger that the last approach is not relevant, since, by definition, a patent has only one reader, namely the skilled person in the art."

Here's a hint for the next writing attempting comparing anything to patent law: Get a clue as to patent law first.

The reader is perhaps the MOST relevant of any of the three.

Take for granted that a subject exists (else, why bother?), and the author portion is only as good as what is reflected in the end product - which is driven by how well the material is made to suit not just one reader, but several distinct readers.

One reader is the examiner - to whose audience is the most immediate in the life of an application, and if not passing that person, then (most likely) no other audience may matter.

A second reader is the judge/jury. This takes much more skill and craft, as a bit of projecting into the future is required (the so-called "scriviner's art"). This aspect is necessary as an adjunct in the eventuality that enforcement necessarily involves the court system.

A third reader is the competition. One needs to be adept enough to reveal enough substance that competition will recognize the sturdiness of the vehicle (this overlaps with the second audience to an extent), but also provides enough strength to both not be some paper tiger of an easy design-around (as happens with those clamoring for exacting picture claims), and enough flexibility and layers that the item may lend itself to be a useful platform for a potential of family members.

The Person Having Ordinary Skill In The Art is NOT an actual audience.

"Audience" is not what term is for. It is both an unknown and unknowable construct at the time of writing, and at best may serve as a tool in addressing the other actual audiences.

Carmen said...

US anon, this article is about why the US is different to Europe in patent matters, and you haven't commented on that. Do you think Dr Huttermann is wrong in that analysis?

MaxDrei said...

Neil's observation that the only reader is the PHOSITA will be understood by readers like me as nothing more than a tart statement of the simple unassailable governing law, that the patent is to be construed in the Patent Office and the courts through the prism of the skilled person.

Unless Neil was being deliberately provocative. Were you Neil? I doubt it.

Perhaps it is a consequence of living in the land of "central claiming", the land that gave its patent system to Japan, Korea and China (although I think not) but my view is that drafting works out best for the inventor in the long run when the drafter has in mind also as reader a non-specialist judge of the Supreme Court or the CEO of your client's ugliest competitor. One wants to implant, in the mind of that reader, a considered verdict, the claimed subject matter corresponds to a contribution to the art that is not only new, inventive and straightforward to implement, but also of serious commercial importance and value. In your drafting, tell a captivating story of problem addressed, and solution imaginatively found, that is an easy read. Make it difficult for such readers to wave away the claim as not worthy of a patent, not deserving of 20 years of exclusive rights.

The law does not require one to draft in that way, and you might get no thanks from your client. Worse, your legal colleagues who earn their crust as litigators will be appalled, and might say so to your client. You will need to be a Master (or Mistress) of your craft, to draft wide enough claims and then to hold your own against the disparagement of the Fancy Dan litigators. But when the competitor bends the knee (or in extremis when the court declines to find fault with your claim) you will get your reward. He who laughs last laughs loudest.

Patents as literature? Gut moeglich! Which genre? Thriller, surely!

IP Draughts said...

Literature takes many forms. The same events (eg spying during the Cold War) in the hands of a Graham Greene may focus on teaching us about the human condition, or in the hands of a John le Carre may focus on telling an entertaining story. The latter sells much more than the former.

Turning to patents, what is the purpose of the patent? Is it to impress investors or company valuers, or to inhibit competition (and does the owner have a budget for litigation), or is it simply a bargaining chip in a game of cross-licensing?

Some would say that the game of patent drafting has lost sight of the ultimate objective, and has become an exercise in style and complexity.

Neil Wilkof said...

Max, I will ask the author of the post, Aloys Huttermann, to consider your thoughtful comment.

Neil Wilkof

THE US anon said...


You ask: "...and you haven't commented on that. Do you think Dr Huttermann is wrong in that analysis?"

My answer is that I have not reached that point of the analysis, given that the foundation presented is so horribly wrong.

One does not build castles on a foundation of sand. Why would I continue exploring an analysis when the tide will remove any remnants of a castle before I get too far?

THE US anon said...

MaxDrei echoes:

"drafting works out best for the inventor in the long run when the drafter has in mind also as reader a non-specialist judge of the Supreme Court or the CEO of your client's ugliest competitor."

Thanks MaxDrei.

THE US anon said...

IP Draughts,

I would put to you that the purpose of a patent may be a spectrum of things, and quite depends on the intents of the client.

All along the spectrum, each "purpose" is fully legitimate. I would reject out of hand your aspersion of "lost sight of the ultimate objective" as a statement revealing more of your own lack of insight into that spectrum of purpose, and perhaps a too-closed-mind view of what patents are "really" for that simply is not in accord with reality.

Carmen said...

Thanks US anon, but I think you are being overcritical of the article. The author is asking us to recognise parallels between the history of literary theory and the approaches of different patent offices. It is surely true that the US is very different from Europe in the way that it looks at patent concepts, and perhaps some of the differences will come from sort of cultural or historical difference. That surely is worth saying and thinking about?

THE US anon said...


I am not being over critical.

Applying some critical thinking to the foundation of what is being written about is NOT over critical.

Let's not think that anyone having an opinion about anything is something that should be merely accepted. If you are going to do a comparative piece on patent law - understand the subject first.

That is not overly critical.

That is merely responsible.

Aloys Hüttermann said...

In response to the comment of Maxdrei: The focus on the reader - at least in literature - comes from the so-called "Konstanzer Schule", in the anglo world usually referred to as "reader-response theory" (cf. here:, cf. also here: The basic idea is as follows:

Reader-response theory recognizes the reader as an active agent who imparts "real existence" to the work and completes its meaning through interpretation. Reader-response criticism argues that literature should be viewed as a performing art in which each reader creates their own, possibly unique, text-related performance.

So this approach only works if there are a multitude of readers. How a skilled patent attorney should draft an application is an entirely different thing and I agree with most what you wrote. Still drafting a perfect patent application is probably impossible, rather the old saying "One size fits all means that it doesnt fit anyone" comes into play.

maxdrei said...

Many thanks for that. All a bit too academic for me. But it does put me in mind of the current obsession inside the EPO with the "clarity" of the text of patent specifications. This obsession is absurd, but it does provide a glorious proof of what you write about, that every reader has a different and unique interpretation of any given text.

No patent attorney ever reached 100% "clarity". For the EPO to refuse a petition from the inventor, applicant or patent owner because its clarity is less than 100% is outrageous. Perfect clarity is something one can approach only asymptotically. The EPO should confine its enquiry to whether the level of clarity is good enough, whether it is "fit for purpose", and not whether it is 100%

Christopher Rennie-Smith said...

Interesting that one comment comes from "Existential threat". I have long thought that patent law has a lot in common with existentialist philosophy - just consider the concept of novelty, for example. Our lives might have been made a lot easier if Jean-Paul Sartre had been a patent lawyer...

Existential threat said...

In response to Christopher Rennie-Smith, I think that Sartre believed art and creativity gives a hope that can be helpful against the otherwise meaninglessness of existence. Perhaps that which is novel and inventive gives us the equivalent in scientific terms, helping to persuade us that perhaps there is something worthwhile in 'progress' even though we are all seemingly becoming less happy in world filled with technology and new discoveries. I suspect Sartre could never have been a patent lawyer, as there is little that we do which is as meaningful as he would want.

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