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    Yale Law Journal: Volume 123, Number 3 - December 2013
    Yale Law Journal: Volume 123, Number 3 - December 2013
    Yale Law Journal: Volume 123, Number 3 - December 2013
    Ebook639 pages7 hours

    Yale Law Journal: Volume 123, Number 3 - December 2013

    By Yale Law Journal

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    About this ebook

    The December issue of Yale Law Journal (the third of Volume 123, academic year 2013-2014) features new articles on law and legal theory by internationally recognized scholars. Contents include:

    • Article, "The Interpretation-Construction Distinction in Patent Law," by Tun-Jen Chiang & Lawrence B. Solum
    • Article, "Agencies as Litigation Gatekeepers," by David Freeman Engstrom
    • Essay,"Tops, Bottoms, and Versatiles: What Straight Views of Penetrative Preferences Could Mean for Sexuality Claims Under Price Waterhouse," by Ian Ayres & Richard Luedeman
    • Review, "Why Protect Religious Freedom?," by Michael W. McConnell
    • Note, "The Case for Tax: A Comparative Approach to Innovation Policy," by Shaun P. Mahaffy

    LanguageEnglish
    PublisherQuid Pro, LLC
    Release dateDec 19, 2013
    ISBN9781610278713
    Yale Law Journal: Volume 123, Number 3 - December 2013
    Author

    Yale Law Journal

    The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

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      Book preview

      Yale Law Journal - Yale Law Journal

      THE YALE LAW JOURNAL

      DECEMBER 2013

      VOLUME 123, NUMBER 3

      Yale Law School

      New Haven, Connecticut

      Smashwords edition: Published in 2013 by Quid Pro Books, at Smashwords.

      Copyright © 2013 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher. Further information on copyright, permissions, and reprints is found at the Responses page.

      The publisher of various formats and editions is The Yale Law Journal, who authorized Quid Pro Books exclusively to republish the ebook editions: digitally published in such editions, for The Yale Law Journal, by Quid Pro Books. Available in all major digital formats and at leading eBook retailers and booksellers.

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      Cataloging for Volume 123, Number 3 – December 2013:

      ISBN: 978-1-61027-871-3 (ePUB)

      CONTENTS

      About The Yale Law Journal

      RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to the Yale Law Journal Online at http://yalelawjournal.org/submissions.html. We cannot guarantee that submitted responses will be published. Those responses that are selected for publication will be edited with the cooperation of the author.

      The Yale Law Journal is published eight times a year (monthly from October through June, excluding February) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.

      SUBSCRIPTIONS. A year subscription for Volume 123 is $55.00 payable in advance (please see our website for overseas shipping charges). Remittance must be made by U.S. dollar drafts payable at a U.S. bank. Unfortunately, we are not able to accept payments in cash or by credit card. Subscription requests received after the first issue of a volume has been printed will run for eight consecutive issues unless otherwise indicated by the subscriber. Subscription backstarting is not permitted to include prior volume years. Overseas delivery is not guaranteed.

      CLAIMS. Domestic claims for non-receipt of issues should be made within 90 days of the month of publication, and overseas claims within 180 days. Thereafter, the regular back issue rate will be charged for replacement. All subscriptions will be renewed automatically unless the subscriber provides timely notice of cancellation prior to the start of a new volume year. Address changes must be made at least two months before publication date. Please provide an old mailing label or the entire old address; the new address must include the ZIP code. Address changes or other requests for subscription information should be directed to the Business Administrator.

      SINGLE AND BACK ISSUES. Each issue of Volume 123 of the Journal can be purchased prepaid from The Yale Law Journal Company, Inc., for $25 (check must accompany order). For Connecticut deliveries, add 6% state sales tax. Remittance must be made by U.S. dollar drafts payable to a U.S. bank. Unfortunately, we are not able to accept payments in cash or credit card. To purchase back issues from Volumes 1-122, please contact William S. Hein and Company, Inc., 1285 Main Street, Buffalo, New York 14209, (800) 828-7571. Back issues can also be found in electronic format on HeinOnline (http://heinonline.org) and through Volume 115 on the Yale Law Journal’s website (http://www.yalelawjournal.org).

      MANUSCRIPTS. The Journal invites the submission of unsolicited Articles, Essays, Book Reviews, and online pieces. Manuscripts must be submitted online at http://yalelawjournal.org/submissions.html.

      COPYRIGHT. Copyright © 2013 by The Yale Law Journal Company, Inc. Requests for copyright permissions should be directed to Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, http://www.copyright.com.

      PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal Company, Inc. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094.

      INTERNET ADDRESS. The Yale Law Journal’s homepage is located at http://www.yalelawjournal.org.

      YALE LAW SCHOOL

      OFFICERS OF ADMINISTRATION

      Peter Salovey, A.B., M.A., Ph.D., President of the University

      Benjamin Polak, B.A., M.A., Ph.D., Provost of the University

      Robert C. Post, J.D., Ph.D., Dean

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean

      Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian

      Megan A. Barnett, B.A., J.D., Associate Dean

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Mary Briese Matheron, B.S., Associate Dean

      Kathleen B. Overly, J.D., Ed.D., Associate Dean

      Asha Rangappa, A.B., J.D., Associate Dean

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      FACULTY EMERITI

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law

      Geoffrey Cornell Hazard, Jr., M.A., LL.B., Sterling Professor Emeritus of Law

      Quintin Johnstone, B.A., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus and Professor (Adjunct) of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      FACULTY

      Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science

      Muneer I. Ahmad, A.B., J.D., Clinical Professor of Law

      †    Anne L. Alstott, B.A., J.D., Jacquin D. Bierman Professor in Taxation

      Akhil Reed Amar, B.A., J.D., Sterling Professor of Law

      Ian Ayres, J.D., Ph.D., William K. Townsend Professor of Law

      Jack M. Balkin, J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment

      Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      Megan A. Barnett, B.A., J.D., Associate Dean

      Seyla Benhabib, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      ‡    Lea Brilmayer, J.D., LL.M., Howard M. Holtzmann Professor of International Law

      Richard R.W. Brooks, Ph.D., J.D., Professor (Adjunct) of Law

      Robert Amsterdam Burt, M.A., J.D., Alexander M. Bickel Professor of Law (fall term)

      Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Steven G. Calabresi, B.A., J.D., Visiting Professor of Law (fall term)

      Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law

      Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

      Kristin A. Collins, M.A., J.D., Sidley Austin-Robert D. McLean ’70 Visiting Professor of Law

      Joseph M. Crosby, B.A., M.B.A., Associate Dean

      Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

      Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

      Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      Stephen Darwall, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Toni Hahn Davis, J.D., LL.M., Associate Dean

      Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law

      Giacinto della Cananea, Ph.D., Visiting Professor of Law (fall term)

      Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law

      Aaron Dhir, LL.B., LL.M., Canadian Bicentennial Visiting Professor of Law

      ‡    Fiona M. Doherty, B.A., J.D., Clinical Associate Professor of Law

      Steven Barry Duke, J.D., LL.M., Professor of Law

      Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor of Property and Urban Law (spring term)

      Edwin Donald Elliott, B.A., J.D., Professor (Adjunct) of Law

      William N. Eskridge, Jr., M.A., J.D., John A. Garver Professor of Jurisprudence

      *    Daniel C. Esty, M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School

      Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

      ‡    James Forman, Jr., A.B., J.D., Clinical Professor of Law

      Emmanuel Gaillard, Ph.D., Visiting Professor of Law (spring term)

      Lech Garlicki, Doctorate in Legal Sciences, Habil. in Legal Sciences, Visiting Professor of Law and Peter and Patricia Gruber Fellow in Global Justice (spring term)

      Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law

      Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law

      †    Abbe R. Gluck, B.A., J.D., Associate Professor of Law

      Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History

      Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law (fall term)

      David Singh Grewal, J.D., Ph.D., Associate Professor of Law

      Dieter Grimm, LL.M., Dr.Jur., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Global Justice (spring term)

      Henry B. Hansmann, J.D., Ph.D., Oscar M. Ruebhausen Professor of Law

      Robert D. Harrison, J.D., Ph.D., Lecturer in Legal Method

      †    Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

      Quintin Johnstone, LL.M., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law

      Christine Jolls, J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization

      ‡    Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law and Professor of Psychology

      Paul W. Kahn, J.D., Ph.D., Robert W. Winner Professor of Law and the Humanities

      †    Amy Kapczynski, M.A., J.D., Associate Professor of Law

      S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian and Professor of Law

      Gregory C. Keating, J.D., Ph.D., Florence Rogatz Visiting Professor of Law (fall term)

      Daniel Kevles, B.A., Ph.D., Professor (Adjunct) of Law (spring term)

      Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean, John Thomas Smith Professor of Law, and Professor of Economics

      Jonathan Klick, Ph.D., J.D., Maurice R. Greenberg Visiting Professor of Law (fall term)

      Harold Hongju Koh, A.B., J.D., Sterling Professor of International Law

      †    Anthony Townsend Kronman, J.D., Ph.D., Sterling Professor of Law

      ‡    Douglas Kysar, B.A., J.D., Joseph M. Field ’55 Professor of Law

      Alexandra D. Lahav, B.A., J.D., Visiting Professor of Law (fall term)

      ‡    John H. Langbein, LL.B., Ph.D., Sterling Professor of Law and Legal History

      Anika Singh Lemar, B.A., J.D., Visiting Clinical Associate Professor of Law

      Yair Listokin, Ph.D., J.D., Professor of Law

      Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law

      *    Daniel Markovits, D.Phil., J.D., Guido Calabresi Professor of Law

      Jerry Louis Mashaw, LL.B., Ph.D., Sterling Professor of Law (fall term)

      Mary Briese Matheron, B.S., Associate Dean

      Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

      Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

      Jeffrey A. Meyer, B.A., J.D., Visiting Professor of Law

      Jon D. Michaels, M.A., J.D., Anne Urowsky Visiting Professor of Law

      Alice Miller, B.A., J.D., Associate Professor (Adjunct) of Law (spring term)

      John D. Morley, B.S., J.D., Associate Professor of Law

      Angela Onwuachi-Willig, B.A., J.D., Visiting Professor of Law (spring term)

      Kathleen B. Overly, B.A., J.D., Associate Dean

      Andrew Papachristos, M.A., Ph.D., Associate Professor (Adjunct) of Law (fall term)

      †    Nicholas R. Parrillo, M.A., J.D., Associate Professor of Law

      Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney

      Thomas Pogge, Dipl. in Soziologie, Ph.D., Professor (Adjunct) of Law (spring term)

      Robert C. Post, J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

      J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney

      Claire Priest, J.D., Ph.D., Professor of Law

      George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

      Asha Rangappa, A.B., J.D., Associate Dean

      William Michael Reisman, B.A., J.S.D., Myres S. McDougal Professor of International Law

      Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

      Deborah L. Rhode, B.A., J.D., Florence Rogatz Visiting Professor of Law (fall term)

      Cristina Rodríguez, M.Litt., J.D., Professor of Law

      Roberta Romano, M.A., J.D., Sterling Professor of Law

      Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law (fall term)

      Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)

      ‡    Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

      Albie Sachs, Law, Ph.D., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)

      David Schleicher, M.Sc., J.D., Irving S. Ribicoff Visiting Associate Professor of Law (spring term)

      Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus and Professor (Adjunct) of Law (fall term)

      ‡    Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law and Social Sciences

      Alan Schwartz, M.A., LL.B., Sterling Professor of Law

      Ian Shapiro, J.D., Ph.D., Professor (Adjunct) of Law (fall term)

      Scott J. Shapiro, J.D., Ph.D., Charles F. Southmayd Professor of Law and Professor of Philosophy

      Reva Siegel, M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

      †    James J. Silk, M.A., J.D., Clinical Professor of Law

      John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

      Robert D. Sloane, Dipl., J.D., Visiting Professor of Law (spring term)

      Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law

      Kate Stith, M.P.P., J.D., Lafayette S. Foster Professor of Law

      Alec Stone Sweet, M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies

      Mike K. Thompson, M.B.A., J.D., Associate Dean

      Tom R. Tyler, M.A., Ph.D., Macklin Fleming Professor of Law and Professor of Psychology

      Patrick Weil, M.B.A., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Fellow in Law (fall term)

      James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law

      Ralph Karl Winter, Jr., M.A.H., LL.B., Professor (Adjunct) of Law (spring term)

      Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education, William O. Douglas Clinical Professor of Law, and Director, Jerome N. Frank Legal Services Organization

      John Fabian Witt, J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

      Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

      Gideon Yaffe, A.B., Ph.D., Professor of Law and Professor of Philosophy

      Noah D. Zatz, M.A., J.D., Florence Rogatz Visiting Professor of Law

      Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law

      Peer Zumbansen, LL.M., Ph.D., Visiting Professor of Law (spring term)

      *    On leave of absence, 2013–2014.

      †    On leave of absence, fall term, 2013.

      ‡    On leave of absence, spring term, 2014.

      LECTURERS IN LAW

      Emily Bazelon, B.A., J.D.

      Gregg Gonsalves, B.S.

      Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law

      Lucas Guttentag, A.B., J.D.

      Su Lin Han, M.A., J.D.

      Jamie P. Horsley, M.A., J.D.

      Margot E. Kaminski, B.A., J.D.

      Hope R. Metcalf, B.A., J.D.

      James E. Ponet, M.A., D.D.

      Yael Shavit, B.A., J.D.

      Robert D. Williams, B.A., J.D.

      VISITING LECTURERS IN LAW

      Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

      Yas Banifatemi, Ph.D., LL.M.

      Richard Baxter, M.A., J.D., John R. Raben/Sullivan & Cromwell Visiting Lecturer in Accounting

      Stephen B. Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law

      Lincoln Caplan, A.B., J.D.

      Susan L. Carney, B.A., J.D.

      Robert N. Chatigny, A.B., J.D.

      Timothy C. Collins, B.A., M.B.A.

      Victoria A. Cundiff, B.A., J.D.

      Brian T. Daly, M.A., J.D.

      Karl (Tom) Dannenbaum, M.A., J.D.

      Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law

      Gregory Fleming, B.A., J.D.

      Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

      Stephen Fraidin, A.B., LL.B.

      Peter T. Grossi, Jr., M.A., J.D.

      Benjamin W. Heineman, Jr., B.Litt., J.D.

      Frank Iacobucci, LL.B., LL.M., Gruber Global Constitutionalism Fellow

      Andrew J. Pincus, B.A., J.D.

      Megan Quattlebaum, B.A., J.D.

      Eric S. Robinson, M.B.A., J.D.

      Charles A. Rothfeld, A.B., J.D.

      Sarah Russell, B.A., J.D.

      John M. Samuels, J.D., LL.M.

      Paul Schwaber, M.A., Ph.D.

      Michael S. Solender, B.A., J.D.

      Sidney H. Stein, A.B., J.D.

      Stefan R. Underhill, B.A., J.D.

      John M. Walker, Jr., B.A., J.D.

      Ashbel T. Wall II, B.A., J.D.

      The Interpretation-Construction Distinction in Patent Law

      TUN-JEN CHIANG & LAWRENCE B. SOLUM

      [cite as 123 YALE L.J. 530 (2013)]

      ABSTRACT. The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims.

      In this Article, we explain why this diagnosis is fundamentally wrong. Claims are not often ambiguous, and linguistic ambiguity is not a major cause of the uncertainty in patent law today. We shall explain what really causes the uncertainty in patent rights, how the erroneous diagnosis of linguistic ambiguity has led the literature off track, and what will get us back on track to solving the uncertainty problem.

      AUTHORS. Tun-Jen Chiang is Assistant Professor of Law, George Mason University School of Law. Lawrence B. Solum is John Carroll Research Professor of Law, Georgetown University Law Center. The authors thank Will Baude, Eric Claeys, Kevin Emerson Collins, John Duffy, Richard Gruner, Timothy Holbrook, Peter Lee, Mark Lemley, Doug Lichtman, Oskar Liivak, Jonathan Masur, Lisa Larrimore Ouellette, Laura Pedraza-Fariña, Arti Rai, and audience members at presentations at the IP Scholars Conference, the University of San Diego, the Henry G. Manne Faculty Forum, and PatCon 3 for comments and suggestions.

      ARTICLE CONTENTS

      INTRODUCTION

      The uncertainty over how courts will apply patent claims in adjudicating infringement is a real and very substantial problem in patent law today. A large literature addresses this problem.¹ The common premise of this literature is that the uncertainty arises because claim language is itself uncertain,² and the proposals for reform accordingly focus on linguistic solutions.³ For example, judges and scholars debate whether the best source of linguistic meaning is dictionary definitions,⁴ or the context provided by the whole patent document,⁵ or testimony from expert witnesses.⁶ A closely related debate is institutional: whether appellate judges, trial judges, or juries are best equipped to implement a particular linguistic solution and discern linguistic meaning.⁷ At the pessimistic extreme, Dan Burk and Mark Lemley argue that claim language is so innately indeterminate that it should be abolished altogether.⁸ Although the proposed solutions vary widely, there is wide agreement that the source of the difficulty is that claim language is vague or ambiguous.⁹ We will call this the linguistic indeterminacy thesis.

      This Article challenges the widely shared premise. The uncertainty in how courts will apply claims does not characteristically arise because of uncertainty regarding linguistic meaning. There may be some occasional cases in which linguistic ambiguity (where language has more than one sense) produces underdeterminacy of legal outcomes, and more cases in which vagueness (where language has borderline cases) causes uncertainty; but we argue that uncertainty in claim application most typically arises because judges have core policy disagreements about the underlying goals of claim construction. In order to explicate and distinguish between these different sources of uncertainty, we will draw upon what has been called the interpretation-construction distinction in recent constitutional theory.¹⁰

      Stated simply, modern constitutional theory draws a distinction between determining the linguistic meaning of a text (interpretation), and giving legal effect to that text (construction).¹¹ To take an example, there is some uncertainty in constitutional law about the contours of the state action doctrine as applied to the First Amendment.¹² But the source of this uncertainty is not linguistic indeterminacy, and the answer to the doctrinal problem cannot be found in better evidence about linguistic practices in the late eighteenth century. The linguistic meaning of the First Amendment’s state action requirement—that Congress is bound—is clear. The cause of the uncertainty is not that people do not know what Congress means as a matter of semantics, but that strictly limiting the First Amendment to congressional action—and allowing other government actors to establish religions and censor speech—would result in outcomes that seem unwise or unjust. Courts react to this problem by engaging in constitutional construction: the courts craft constitutional doctrine with a broader scope of application for the First Amendment. Uncertainty about this doctrine results when judges disagree on how much broader the scope should be in light of the underlying reasons of policy and principle. This normative dispute over legal effect is very different from a dispute about the semantic meaning of the word Congress.

      The interpretation-construction distinction does not tell us how to resolve these disputes over legal effect. Rather, the payoff of drawing the distinction is antecedent: it tells us which issues are problems of linguistic meaning, and which issues are problems of legal effect. This is important because the two types of problems call for different solutions. More and better linguistic information (such as more accurate definitions or data about usage) can solve problems of linguistic uncertainty and hence result in more accurate interpretations. Linguistics cannot resolve policy debates and thus cannot resolve issues of construction. The limits of linguistics are especially apparent when the linguistic meaning of a claim underdetermines the claim’s legal effect. We shall call the space where linguistic information underdetermines legal effect the construction zone.

      The confusion between interpretation and construction—and the use of the wrong tools because of a misdiagnosis of the problem—is endemic in patent law. As mentioned above, the premise of the literature has been that the problems of claim construction stem from linguistic uncertainty. The same is true of the case law. The leading modern case on analyzing patent claims (we will use analysis to denote an activity that encompasses both interpretation and construction) is Phillips v. AWH Corp.,¹³ which deals with whether a patent claim to steel baffles covered non-bullet-deflecting steel baffles. Reflecting the consensus that the problem with claims is their linguistic indeterminacy, the opinion features an extended discussion of the role of dictionaries and other sources in determining linguistic meaning.¹⁴ But this was a fool’s errand. Nobody in Phillips—none of the litigants, and none of the judges in the majority or the two dissents—disputed the linguistic meaning of steel baffle or that this linguistic meaning covered a non-bullet-deflecting baffle.¹⁵ The dispute in Phillips was over the wisdom of giving legal effect to this linguistic meaning, because the patentee’s stated purpose for the invention was a bullet-resistant reinforced wall, while the accused product did not deflect bullets.¹⁶ Giving legal effect to the semantic meaning would thus arguably extend the monopoly scope of the patent to something that the patentee had not really invented. What Phillips really represents is a conflict about the underlying goal of claim construction: is it to give effect to the linguistic meaning of text, or is it to tailor patent scope to the real invention? As we will explain, these two goals are fundamentally different, and the inquiry becomes incoherent—and uncertain—when judges oscillate between them.

      In this Article, we are not taking a position on the question whether allowing patentees a broader monopoly than what they had invented or foreseen is good patent policy; that is a question for another day. Our point is that the interpretation-construction distinction provides a conceptual tool that allows scholars, lawyers, and judges to identify this policy disagreement as the true cause of disputes. Because most disputes over claim meaning are actually normative disputes over policy issues, a solution to the claim construction debate cannot be found in better linguistic sources. Efforts at reform should focus instead on resolving the policy disagreement among judges.

      Here is a road map. Part I provides background on patent claims and describes the conventional debate about problems in claim analysis, which attributes uncertainty to textual defects. Part II then begins by laying out a general theory for analyzing legal texts, in particular distinguishing between the interpretation of linguistic meaning and the construction of legal effect. We then lay out the kinds of problems that are generally addressed through interpretation, and the kinds of problems that generally fall under the rubric of construction. We will also distinguish between two kinds of construction. At a high level, courts engage in construction by determining whether to follow the linguistic meaning of text or to follow something else in making their decisions. At a lower level, if a court chooses to follow the linguistic meaning of text, it must decide how to fill in the gaps when the linguistic meaning does not fully answer a legal dispute (i.e., the dispute falls within the construction zone). As we will explain, both types of construction involve normative policy choices, and both are qualitatively different from the type of linguistic inquiry that occurs during interpretation.

      Parts III to V then apply this framework to patent law. We illustrate through exemplar cases our argument that claim analysis debates are mainly about construction: judges do not disagree about the linguistic meaning, but they do disagree about whether to construe claims according to the linguistic meaning or according to the patentee’s actual inventive idea. The two standards are different, and they represent different theories of construction. The policy dispute between them is the true cause of the uncertainty in patent law today.

      Part VI considers the implications of our analysis. Contrary to what scholars and courts have assumed (or professed to assume), it is simply not true that claim analysis disputes arise primarily because claim text is linguistically ambiguous. Better linguistic tools—which patent scholars and judges have felled many trees proposing and debating—will therefore not help resolve the uncertainty in claim analysis. Rather, the primary cause of uncertainty in patent rights is that judges disagree over the better theory of construction, namely, whether courts should award patent scope according to the linguistic meaning of the claim text or according to the real invention. We then explain how the interpretation-construction distinction provides a conceptual framework to evaluate proposed solutions to the problem, one in which policy proposals can be brought forward and evaluated as policy proposals. We argue that this is greatly superior to the conceptual strictures of the existing debate, where all proposals for reform (even those that are really policy prescriptions) are framed and evaluated as solutions to linguistic uncertainty. By providing a conceptual tool that exposes the misguided premises of the existing debate and making clear the true causes of uncertainty in patent law, as well as by providing a better conceptual framework to evaluate proposals for reform, the interpretation-construction distinction lays the foundation for a more productive discourse about claim analysis.

      I. THE LINGUISTIC INDETERMINACY THEORY OF PATENT LAW

      In this Part, we describe the conventional terms of debate over claim meaning, where the problem is presented as one involving linguistic interpretation. Before describing the debate over patent claims, however, it is useful to provide a brief background on what claims are, and how they relate to the rest of the patent document.

      A. Background on Patents

      A United States Patent is a complex document, but its two most important components are the written description of the invention (commonly called the specification) and the claims.¹⁷ Both the specification and the claims are drafted by the patentee, and they both purport to describe the invention being patented. Though this might seem redundant at first blush, the specification and the claims in fact perform very different functions, and look quite different in practice.¹⁸

      The specification provides a detailed technical disclosure of the invention, so that others can make and use it.¹⁹ This requires considerable detail, so that the invention can be built from the ground up. For example, in the specification of their patent on the airplane, the Wright brothers described their pioneering glider down to the springs, ropes, cloth, and wood that it used.²⁰ These details are needed so that someone reading the patent could later (after the patent expires) build an airplane based on their example.²¹

      But, obviously, it is not particularly important that an airplane use a particular type of spring. The essence of an airplane is simply that it has wings and flies. It would eviscerate patent incentives if another person could take the Wright brothers’ airplane, change a few springs, and thereby escape infringement liability. In other words, it is important for patent law to encourage the Wright brothers to disclose lots of technical detail to allow later replication of the invention, but it would be unwise to confine the legal scope of the monopoly right by requiring those details to be slavishly replicated for infringement.²²

      To solve this problem, patent law developed claims, which are one-sentence descriptions of the invention that demarcate the monopoly right. By separating claims from the specification, patent law allows different functions to be fulfilled. In the specification, the Wright brothers can describe their airplane in tremendous detail. But in defining their patent’s legal scope, they are permitted to claim the essential inventive features.²³ A simplified claim to the airplane might thus read:

      My invention is a flying machine that has

      (1) wings; and,

      (2) a rudder.²⁴

      It is important to understand that the claim allows the patentee to cover much more than replication of the embodiment that is described in the specification. The Wright brothers’ specification described a single wooden glider: it barely flew, it had no engine, and it used cloth wings. But the inventive idea being claimed in our example above—an airplane with wings and a rudder—covers all airplanes, including a future jet. It is bedrock patent law that anything that is described by a claim infringes the patent, even if it otherwise looks very different from the specification embodiment.²⁵ Although a modern 747 looks very different from the Wright brothers’ glider (the specification embodiment), it still has wings and a rudder, and thus it would infringe a patent with a claim written in the manner of our example.

      In sum, the claim and the specification both describe the invention, but they serve different roles. For legal purposes, it is the claim that defines patent scope.²⁶

      B. The Problem of Claim Meaning

      As the Section above explains, claim scope equals patent scope,²⁷ which makes claims very important. It is equally axiomatic that claim scope is defined by the text of the claim.²⁸ It is generally regarded as very important that patent scope be entirely independent of the policy judgment of individual judges.²⁹ It is the worst form of judicial activism, according to the Federal Circuit, for a judge to first decide whether an accused product ought be found to infringe and then twist claim text to reach that desired result.³⁰ In short, claim analysis is supposed to be a process where judges first neutrally interpret the text and then allow the infringement chips to fall where they may.

      Yet despite these routine pronouncements by courts that they are rigidly adhering to claim text, it still seems that claim scope is wildly unpredictable. If one looks to the Federal Circuit, that court can apparently read the same text to reach almost any outcome. The court has held that the word a means one or more,³¹ and it has also held that it means only one.³² It has held the word plurality to mean more than one,³³ and it has also held the word to mean one.³⁴ It has held that using the word normal limits a claim to technology in common use at the time of patent filing,³⁵ while using the word regular does not.³⁶ The list of inconsistencies and contradictions goes on.

      What observers take from these cases is that, because the judges purport to be applying the text but are coming to wildly disparate results, the text must be defective and its meaning is nearly always unclear.³⁷ In short, courts and commentators subscribe to the linguistic indeterminacy thesis that the indeterminacy of claim language is what causes the disparate results and the ex ante uncertainty regarding patent rights. Proceeding from this predicate diagnosis, they then debate the merits of a wide variety of linguistic tools as solutions to legal uncertainty.³⁸ For example, one line of case law argues that ambiguous claim text should be clarified by looking to unbiased third-party sources such as dictionaries and encyclopedias.³⁹ Another line of case law argues that ambiguous text should be clarified by looking to the patentee’s own usage in the patent specification.⁴⁰ Craig Allen Nard argues that ambiguous text should be clarified by looking to expert testimony about how a person in the field would understand the claim terms.⁴¹ Dan Burk and Peter Lee have each argued for a process of dynamic interpretation where courts would exploit the ambiguity of language to reach socially beneficial outcomes while purporting to maintain fidelity to text.⁴² Oskar Liivak argues that claims must be interpreted according to the invention, which he defines as the set of embodiments conceived and disclosed by the inventor in enough detail that they can be reduced to practice.⁴³ Most extremely, Dan Burk and Mark Lemley argue that claim text is so innately defective that it cannot be redeemed and that the claiming requirement should therefore be abolished.⁴⁴ Under this proposal, patent scope would instead be directly determined by courts according to what they perceive to be the patentee’s invention.⁴⁵

      A closely related literature focuses on the institutional allocation of responsibility. If the problem is that claim language is unclear, then who is best equipped to implement a chosen linguistic cure? The Supreme Court in Markman v. Westview Instruments, Inc. held claim analysis to be a pure question of law,⁴⁶ implicitly allocating the task to appellate judges on the rationale that they are especially skilled in analyzing written documents.⁴⁷ Patent scholars and judges have spilled much ink advocating a wide variety of alternatives, ranging from allocating claim analysis to district judges,⁴⁸ to allocating it to specialized trial courts,⁴⁹ to allocating it to the U.S. Patent and Trademark Office (PTO),⁵⁰ to allocating it to juries.⁵¹ Invariably, the argument is that the alternative decision-maker would be in some way better able to understand claim language compared to appellate judges.

      Although the proposed solutions (and the proposed actors to implement the solutions) differ widely, they all share one underlying premise: that the root cause of the problem is linguistic uncertainty. That is, the conflict over the proper approach to claim analysis is believed to arise only because the text itself is linguistically ambiguous or vague in the first place.⁵² We challenge this premise. As we shall discuss, the cause of uncertainty in claim analysis is typically not a linguistic defect, but rather normative disagreement. In order to distinguish these two types of uncertainty more carefully, we will draw upon the interpretation-construction distinction, a concept in legal theory that has been widely discussed outside of the patent law literature.

      II. THE INTERPRETATION-CONSTRUCTION DISTINCTION

      In this Part, we first provide an introduction to the interpretation-construction distinction. Our primary example will be drawn from constitutional law, where the interpretation-construction distinction has had the greatest contemporary influence. Much like the current argument in patent law, a once-common argument in constitutional law claimed that the constitutional text was frequently indeterminate. As Larry Simon put it, [w]hile some of the provisions in the Constitution have relatively unambiguous, specific, and noncontroversial meanings, the language of a great many is so vague, ambiguous, and open-textured that they might be understood to mean almost anything.⁵³ For example, how cruel and unusual is so cruel and unusual that it violates the Eighth Amendment? This then led to the belief that textualism and originalism were unworkable, and that original meaning should have little role in constitutional analysis.⁵⁴

      What the interpretation-construction distinction has exposed is a logical fallacy in the argument: the mere fact that the text does not fully dictate legal outcomes does not mean that it tells us nothing. Text can have a linguistic meaning even when legal outcomes are not fully determined: we know the linguistic meaning of cruelty—in the sense of it being a comprehensible concept—even when there are borderline cases of cruelty or the precise line between cruel and not is difficult to discern.

      As a result of this insight, there is now a wide consensus that original meaning has an important role to play in constitutional analysis, albeit not a fully determinative role.⁵⁵ We believe that the interpretation-construction distinction can likewise inform the debate in patent law. We begin by explaining the concept itself.

      A. A Simple Example

      Consider the first word of the First Amendment to the United States Constitution: Congress. In one sense, every reader of this Article should understand what this word means—it refers to the legislative organ of the federal government. But, in another sense, it is also entirely common as a figure of lawyerly speech to say that the First Amendment means that executive branch officials cannot prosecute political dissidents for their views,⁵⁶ and that district courts cannot issue injunctions against truthful speech.⁵⁷ The First Amendment means these things

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