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 book “Literatur- 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.