who has senior status in the Southern District of New York, is
one of the judges in the
patent pilot programme, which
14 district courts are taking part in.
short and witty speech, Rakoff’s message to patent
litigators was clear: too many of you do not use clear English
words in litigation, or use them confusingly. This is
particularly a problem in jury trials, but also affects judges
and other parties in court.
As examples, he pointed to the use of terms such as 'reads
on’ ("Even patent lawyers don’t use
this term consistently!") and 'teach away’.
Further barbs were aimed at 'prosecution history’
and 'file wrapper’.
"What is added by these obscure terms?" asked Rakoff,
pointing out that they were "gibberish" to jurors.
What’s worse, he added, is that in many cases
these are not technical terms but everyday English words that
sound ordinary, but are being invested with meanings beyond
their normal use.
Rakoff’s advice ("simplify without being
simplistic") reminded me of George Orwell’s
Politics and the English Language, published in 1946 (and
conveniently available royalty-free). Orwell’s
target was politicians rather than lawyers, but I would suggest
his advice (such as "If you simplify your English, you are
freed from the worst follies of orthodoxy") is still valid
today. Patent lawyers would be well advised to read his six
tips on good writing or, if they have done so already, re-read
might respond that they are dealt a poor hand by patent
drafters who – unencumbered by the discipline of court
time and judicial interruptions – are guilty of
inflicting some horrible crimes on clear English. No doubt.
They might also argue that they are dealing with legal,
technical subjects that are inherently complex. All the more
reason, I say, to express yourself as clearly as possible.
The use of certain technical terms of course is a kind of
shorthand, understood and repeated by patent professionals in
industry, private practice and the PTO. But I understood Rakoff
to argue that even if that is acceptable in those narrow
communities, it should be avoided where non-specialists are
concerned. That’s true in the courtroom. As we
face more debates over the protection and enforcement of IP
rights, it’s also imperative for wider public