Of novelty, inventiveness and sufficiency: how to write a good paper or thesis

Spring semester is here and that means students at universities all over the world are getting ready to write final assignments or even their theses. This Kat is proud to announce that, starting this semester, he will be teaching in the IP courses of the Erasmus University Rotterdam, together with professor Tobias Cohen Jehoram. It's a great honour to teach alongside such a renowned IP scholar and litigator in the city that "makes it happen" and is known for its slogan "Niet lullen maar poetsen"—which translates roughly to "Don't sit around talking but get off your butt and get to it". 

As it turns out, that is not the worst advice one can give a student faced with a paper or thesis assignment. For all those kittens out there about to face this ordeal, this Kat composed a checklist to help their writing. Having written it down, it bore uncanny resemblance to the requirements for patentability under the European Patent Convention (EPC). Call it an extreme case of nerdview, but if it helps you write your paper, that's at least one good deed for humanity on the part of patent law.

If Cosimo can be a butterfly, you can write a fine paper!

So without further ado, here is my patentability requirements checklist for any academic paper:

Patentable subject matter [art. 52 EPC]: or, what should you write about?

Any patent lawyer will tell you that patent law's scope is very broad—as the U.S. Supreme Court once put it, patents can cover "anything under the sun made by man". Similarly, unless your professor assigned you a specific topic, your paper can be on any topic you like.

So where to begin? Maybe you read something in the newspaper or on this blog that sparked your interest, such as a recent controversy or legislative change. Maybe you were intrigued by one of the topics discussed in your lectures, or puzzled by a court decision or article you studied. Maybe you or someone you know have prior experience with an area of IP law and you would like to learn more about it. There are endless sources of inspiration: the important thing is that you find something that appeals to you.

The next step is to formulate a research question. The research question is arguably the most important element of your paper and formulating it properly is no easy task. PermaKat Eleonora has suggested five key questions to help you get started: see here, with a more detailed guide to student academic writing here. Another useful source is this recent article by Eliav Lieblich. No doubt, your professor will be able to provide suggestions for topics or for the formulation of your research question. Try not to feel frustrated if it eludes you at first: even seasoned researchers can struggle to come up with a good one.

Remember that the formulation of your research question is an ongoing process. First, study your subject to get a grip on the literature. Then phrase a preliminary research question to help you get started. As you read more and start writing, be sure to revisit your research question occasionally to modify it as needed. Your research question will likely only be final once your paper is: that's all right, as long as you make sure it aligns with your research.

Novelty [art. 54 EPC]: or, the requirement that your paper be something not done before. At the most basic level, this means that your paper should be free of plagiarism. But it also means that you should demonstrate knowledge of existing literature and case-law – the "prior art", if you will – and write something original that goes on top of it.

As in any patent application, it is not necessary (or even possible) to cite all the prior art. Instead, try to focus on the most important points of reference for your thesis: the handful of papers, books or decisions that are most relevant for your thesis and that provide a springboard for your arguments. Professors are usually more impressed if you can identify the key papers in the field and thoroughly engage with them than if you simply cite all papers you can find on Google Scholar. It will save you a bundle of time too!

Inventive step [art. 56 EPC]: or, the requirement that your paper advances a creative argument. Just like in patent law, this requirement is perhaps the most important; and just like in patent law, it is impossible to put into words what it means exactly for something to be "inventive".

Article 56 EPC actually puts it pretty nicely: your argument must not be "obvious to a person skilled in the art". You can safely assume that your professor is, indeed, skilled in the art—in other words, familiar with the literature you studied and cite. Being inventive means that, to them, your argument must contain a degree of originality: a new perspective, a new conclusion, a new link, a new suggestion, etc.

This excludes papers that merely summarize the available literature, but also papers making arguments that are obvious in light of existing doctrine or case law. In searching for an original contribution to the literature, try to make your opinion heard: what do you think is the correct way forward for the law? Don't be afraid your student status disqualifies your opinion. If you doubt yourself, remember the ever-insightful words of Oscar Wilde: the young know everything. And don't be afraid to disagree with existing sources: that's what academic writing is all about!

A great way to add originality to your paper is to conduct empirical research. Consider, for instance, conducting stakeholder interviews [see e.g. here]; analysing public statements that provide information on industry positions [see e.g. here]; analysing a dataset of court filings [see e.g. here]; or performing a historical case study [see e.g. here]. This may seem daunting, and the cited examples are all publications by established academics: but you can learn from their methodology and apply it on a smaller scale. Your thesis supervisor will no doubt be able to provide suggestions on ways to enhance your paper with empirical research.

Unity of invention [art. 82 EPC]: or, the requirement that your paper is sufficiently delineated. Art. 82 EPC states that "the European patent application shall relate to one invention only". Likewise, your paper should be limited to your core argument only: one paper, one argument.

This is easier said than done. When researching and writing, we often come across interesting sideroads or overlapping arguments. A difficult aspect of academic writing – one that takes years to master – is to know which of these to include in your narrative, and which ones to leave aside for future study. The oft-used phrase "less is more" applies with particular force to academic writing (although you may be fooled to think otherwise reading some law review articles…).

Your research question is the best tool to achieve this. Ask yourself, for each paragraph in your thesis, how does this help me answer my research question. Formulating one or more sub-questions to cover different chapters can help with this.

Sufficiency of disclosure [art. 83 EPC]: or, the requirement that your paper must answer your research question. Sufficiency and unity are two sides of the same coin: whatever is not relevant to your research question should not be in the paper, and what is in your paper, should be sufficient to answer it.

Ask yourself what type of argument is necessary to answer your research question. Maybe the answer requires empirical data, as for instance in "Does the press publisher right in Article 15 of Directive 2019/790 provide adequate protection for newspaper companies?". Normative or evaluative questions, such as "Should foodstuffs be subject to copyright protection?", require a yardstick to answer them: criteria by which you judge whether the doctrine or law under scrutiny is desirable or adequate. Thus, your research question determines the arguments you need to make to a significant extent. Make sure to keep this in mind when drafting (or periodically revising) it.

Clarity of claims [art. 84 EPC]: or, the requirement that your writing should be clear and convincing.

Legal argumentation, whether for the purpose of legal practice or scholarship, is a craft. Instead of furniture or jewellery, we lawyers craft legal arguments. And just as the quality of a carpenter's or goldsmith's tools affect the quality of the resulting product, the quality of the tools lawyers use – language – strongly affects the quality of the overall argument. As a general suggestion, writing in a clear and down-to-earth manner usually works best. Save the flowery language for your poetry class.

Learning to write well is a life-long learning process that is strongly influenced by our teachers (that's why it is so important to choose them wisely if you can!). But it is critical to realize that writing well is not just a nice-to-have: it is essential to the success of your argument. It is therefore worthwhile asking colleagues to proofread your paper and point out sections that could be worded more clearly.

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There you have it: all you need to draft your first patent application get you started on planning and writing your next paper. To close off with just one last reference to the fascinating law of patents: remember that a "flash of genius" is not necessary to write a good paper. If sudden inspiration comes to you, that's great—but don't sit around waiting for it, and don't feel bad if it doesn't come. Diligence and consistency are much more important and will more often result in a good paper than a brilliant idea. As you begin your career in the legal profession, you will no doubt be told frequently that doing law is 95% perspiration and 5% inspiration. On that note, this Kat wishes all young writers the best of luck with their assignments—and don't forget the Rotterdam maxim, Niet lullen maar poetsen.