Rakoff (right), 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.
In a 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 classic essay 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 them.
Litigators 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 discussion.