plato nominalism and patents
TRANSCRIPT
PLI – PATENT LITIGATION
PLATO, NOMINALISM AND PATENTS
Brad Lyerlawww.marshallip.com
PRINCIPAL CRITICS -- NOMINALISTS
• “Chair” is just a name.• There is nothing that corresponds to “chairness.”
It is just about how language works.• Plato is a realist. He thinks “chairness” really
exists.• Nominalists think “chairness” does not exist; its
just language.• Plato – metaphysics. Nominalists – linguistics.
When we resolve an ambiguity, we have a choice. We can focus on the
invention or we can focus on the words.
INVENTION — ADVANTAGES
● Emphasize Technology.● Claim Scope Co-Extensive
with Invention.● Intuitive to Non-Lawyer
Public.● Legitimacy.
INVENTION — DISADVANTAGES
• Difficult To Do.• May Not Serve Public
Notice Function.• May ignore Johnson & Johnson (disclosed but not claimed subject matter).
WORDS — ADVANTAGES
• Not About Technology.• About a Legal Document.• Public Notice.• Avoid “Reading In”
Limitations.
WORDS — DISADVANTAGES
• Disconnected from theInventor’s Contribution.
• Empowers “Patent Trolls.”• Erodes Credibility of Patents.
INVENTION — HOW ONE BEHAVES
• Wide-Open Process.• All Probative Evidence.• No Bias Favoring Certain
Types of Evidence.
WORDS — HOW ONE BEHAVES
• Tools of a Linguist.• Dictionaries.• Formal Rules of Construction.• Hierarchical. [e.g., UCC § 2-202]
PHILLIPS v. AWH CORPORATION
• Baffles – Only Acute or Oblique Angles in Disclosure.
• Defendant’s Baffles Perpendicular.• Trial Court – No Infringement.• Federal Circuit – Affirmed on Different Analysis.• En Banc – Covers Perpendicular Baffles.• Invention or Words?
PHILLIPS CREATES A HYBRID• Preference for Invention: “The
patent system is based on theproposition that claims cover onlythe invented subject matter.”
• Texas Digital rejected.• Adopts some tools of a Linguist.
Hierarchical Probativity. Claim Differentiation.
WHAT DOES PHILLIPSMEAN BY “INVENTION”
• Not the claims.• The inventor’s contribution to the art.• To discern the contribution, look at the
written disclosure.
CONCLUSIONS
• Rejects ideological purity.• Genius of common law method
to reject ideology in favor of what works.
Thank You
Brad Lyerla is a trial lawyer and a partner at Marshall, Gerstein & Borun LLP. He graduated from the University of Illinois in 1976 where he was elected to Phi Beta Kappa. He obtained his law degree from the University of Illinois College of Law in 1980. He was a member and editor of the Law Review.He is listed in Who’s Who in America, Who’s Who in American Law, America’s Leading Lawyers and Illinois Super Lawyers, among others. He is a Life Fellow of the American Bar Foundation and is a recipient of the John Powers Crowley Justice Award for Pro Bono trial work.He has tried cases for such well-known companies as AM International, Quaker Oats, General Dynamics, MCI, Solo Cup Company, Chris-Craft Industries and US Robotics among many others. Most of his trial work is in trade secret and patent infringement lawsuits.
For further information contact Mr. Lyerla at:[email protected](312) 474-9556