Tortuous Linguistics

Tortuous Linguistics

Language Controversies that Arise in Civil Litigation

Questions for LinguistsQuestions for Linguists Contract construal

Can the intentions of the framers be divined within the ‘four corners’ of the document?

Patent ‘claim’ interpretationMost patent claims are rejected as too broad. But is the description of the device broad enough to prevent minor variants from being accepted as distinct patents? If the manufacturer amended the patent after acceptance, did it ‘surrender equivalents’?

Trademark infringementWhere two marks are similar, what is the likelihood of consumer confusion? Does the mark suggest the quality or origin of the goods/services or is it instead descriptive or generic? (Chef America, Inc. v Schwan’s Sales Enterprises, Inc., Robert Donchez v Coors Brewing Company and Foote, Cone & Belding Advertising, Inc., J&J Snack Foods Corp. v Nestlé USA, Inc. v. Earthgrains Co.)

Contract construalCan the intentions of the framers be divined within the ‘four corners’ of the document?

Patent ‘claim’ interpretationMost patent claims are rejected as too broad. But is the description of the device broad enough to prevent minor variants from being accepted as distinct patents? If the manufacturer amended the patent after acceptance, did it ‘surrender equivalents’?

Trademark infringementWhere two marks are similar, what is the likelihood of consumer confusion? Does the mark suggest the quality or origin of the goods/services or is it instead descriptive or generic? (Chef America, Inc. v Schwan’s Sales Enterprises, Inc., Robert Donchez v Coors Brewing Company and Foote, Cone & Belding Advertising, Inc., J&J Snack Foods Corp. v Nestlé USA, Inc. v. Earthgrains Co.)

Language from a Patent ClaimLanguage from a Patent ClaimWhat was litigated: Did the phase relative to insertion… narrow the meaning of parameters? If so, this could be viewed as relinquishing claims on what would otherwise be viewed as equivalent gadgets.

Heidrick et al. v P.D.B. Sports, Ltd.Heidrick et al. v P.D.B. Sports, Ltd. What obligations did the Broncos franchise

incur toward the City and County of Denver when voters approved a bond issue that financed the expansion of Mile High Stadium in 1977?

Can we determine this unambiguously from the contract they signed at that time?

How can a linguist help to identify possible interpretations of the contract?

What happens if the contract truly is ambiguous?

What obligations did the Broncos franchise incur toward the City and County of Denver when voters approved a bond issue that financed the expansion of Mile High Stadium in 1977?

Can we determine this unambiguously from the contract they signed at that time?

How can a linguist help to identify possible interpretations of the contract?

What happens if the contract truly is ambiguous?

The Facts of the CaseThe Facts of the Case

Plaintiffs represent a class of season ticket holders to Denver Broncos’ games.

They claim that since 1984, PDB Sports (the Denver Broncos) has been in violation of a contract (the ‘User Agreement’) that they signed with the City and County of Denver for the use of the old Mile High Stadium.

Plaintiffs have retained a linguist to help interpret one section of the Agreement.

Plaintiffs represent a class of season ticket holders to Denver Broncos’ games.

They claim that since 1984, PDB Sports (the Denver Broncos) has been in violation of a contract (the ‘User Agreement’) that they signed with the City and County of Denver for the use of the old Mile High Stadium.

Plaintiffs have retained a linguist to help interpret one section of the Agreement.

The AgreementThe Agreement25.Broncos covenant that charges, excluding

admission taxes, if any, and other taxes for admission and services at Home Games of Broncos at the Stadium [70,000] or Expanded Stadium [75,000] during this Agreement of any extension thereof shall not exceed similar charges in comparable facilities made by other owners of a franchise in the League without the written permission of the Mayor first had and obtained.

— Excerpt from the user agreement signed in January 1977 by the City and County of Denver, a municipal corporation of the State of Colorado, and Rocky Mountain Empire Sports, Inc, a Colorado Corporation.

25.Broncos covenant that charges, excluding admission taxes, if any, and other taxes for admission and services at Home Games of Broncos at the Stadium [70,000] or Expanded Stadium [75,000] during this Agreement of any extension thereof shall not exceed similar charges in comparable facilities made by other owners of a franchise in the League without the written permission of the Mayor first had and obtained.

— Excerpt from the user agreement signed in January 1977 by the City and County of Denver, a municipal corporation of the State of Colorado, and Rocky Mountain Empire Sports, Inc, a Colorado Corporation.

Question 1Question 1

What is the interpretation of the passage “charges [...] shall not exceed [...] charges made by other owners of a franchise in the League [...]”?

What is the interpretation of the passage “charges [...] shall not exceed [...] charges made by other owners of a franchise in the League [...]”?

AnswerAnswerThe passage has two interpretations:

Interpretation 1. The charges levied by the Broncos franchise must not exceed (similar) charges levied by any individual franchise in the League (with a comparable facility).

Interpretation 2. The charges levied by the Broncos franchise must not exceed (similar) charges levied by every individual franchise in the League (with a comparable facility).

The passage has two interpretations: Interpretation 1. The charges levied by the

Broncos franchise must not exceed (similar) charges levied by any individual franchise in the League (with a comparable facility).

Interpretation 2. The charges levied by the Broncos franchise must not exceed (similar) charges levied by every individual franchise in the League (with a comparable facility).

Question 2Question 2

How do we represent the logical structure of these two interpretations? Interpretation 1. ‘Any franchise’. Interpretation 2. ‘Every

franchise’.

How do we represent the logical structure of these two interpretations? Interpretation 1. ‘Any franchise’. Interpretation 2. ‘Every

franchise’.

AnswerAnswer

We use two predicate-calculus formulas.

Each of these will contain:

The negative operator (~). It represents the meaning of the word not in the passage.

The universal quantifier (). It represents the set of franchises in the League.

We use two predicate-calculus formulas.

Each of these will contain:

The negative operator (~). It represents the meaning of the word not in the passage.

The universal quantifier (). It represents the set of franchises in the League.

Interpretation 1Interpretation 1

x: Franchise (x) ~ Exceed (Broncos, x)

Translation. It is necessary for each franchise that the Broncos do not exceed that franchise in fees.

x: Franchise (x) ~ Exceed (Broncos, x)

Translation. It is necessary for each franchise that the Broncos do not exceed that franchise in fees.

Interpretation 2Interpretation 2

x: Franchise (x) Exceed (Broncos, x)

Translation. It must not be the case that for all franchises, the Broncos exceed that franchise in fees.

x: Franchise (x) Exceed (Broncos, x)

Translation. It must not be the case that for all franchises, the Broncos exceed that franchise in fees.

Question 3Question 3

Is one of these two interpretations preferred?

Answer. Languages favor interpretations in which the universal quantifier precedes a negative in the semantic representation. Illustration: Fortunately, Julia is not taller

than her Salsa partners.

Is one of these two interpretations preferred?

Answer. Languages favor interpretations in which the universal quantifier precedes a negative in the semantic representation. Illustration: Fortunately, Julia is not taller

than her Salsa partners.

Two Interpretations AgainTwo Interpretations Again

x: Salsa-partner (x)~Taller-than (Julia, x) ‘Julia is shorter than all of her partners.’

~x: Salsa-partner (x) Taller-than (Julia, x) ‘Some or all of Julia’s partners are taller.’

x: Salsa-partner (x)~Taller-than (Julia, x) ‘Julia is shorter than all of her partners.’

~x: Salsa-partner (x) Taller-than (Julia, x) ‘Some or all of Julia’s partners are taller.’

Overriding DefaultsOverriding Defaults

By Quantity I, if speakers need to override the default interpretation (~), they will use extra language to show this: Julia is not taller than all of her partners. Julia is not taller than every partner.

So if the signers of the User Agreement had meant , they would have said: Charges [...] shall not exceed [...] charges

[…] made by every other owner of a franchise in the League [...].

By Quantity I, if speakers need to override the default interpretation (~), they will use extra language to show this: Julia is not taller than all of her partners. Julia is not taller than every partner.

So if the signers of the User Agreement had meant , they would have said: Charges [...] shall not exceed [...] charges

[…] made by every other owner of a franchise in the League [...].

ConclusionConclusion

Therefore, the default interpretation (~) of the User Agreement was the one the signers intended.

On this interpretation, the Broncos must be the lowest-charging franchise in the NFL.

Does a history of enforcement of the contract support this interpretation?

Therefore, the default interpretation (~) of the User Agreement was the one the signers intended.

On this interpretation, the Broncos must be the lowest-charging franchise in the NFL.

Does a history of enforcement of the contract support this interpretation?

Potential Objection to ConclusionPotential Objection to Conclusion The text uses plurals:

charges shall not exceed similar charges in

comparable facilities made by other owners of a franchise in the League

This appears to suggest that the ‘every interpretation’ is the right one.

But plural and singular alternate: the standards of comparison can be assessed jointly or singly.

The text uses plurals:charges shall not exceed similar charges in

comparable facilities made by other owners of a franchise in the League

This appears to suggest that the ‘every interpretation’ is the right one.

But plural and singular alternate: the standards of comparison can be assessed jointly or singly.

A Ruling on ConstrualA Ruling on Construal

April 2000. District Court judge in Denver issues summary judgment on ‘construction of paragraph 25’.

Judge rules that the construal of the phrase comparable facilities is ambiguous.

“When an ambiguity is found to exist, the court should consider extrinsic evidence in order to determine the mutual intent of the parties at the time of contracting.”

April 2000. District Court judge in Denver issues summary judgment on ‘construction of paragraph 25’.

Judge rules that the construal of the phrase comparable facilities is ambiguous.

“When an ambiguity is found to exist, the court should consider extrinsic evidence in order to determine the mutual intent of the parties at the time of contracting.”

Extrinsic EvidenceExtrinsic Evidence The City and the Broncos have

treated the phrase ‘comparable facilities’ as if it requires a restriction on ticket prices in comparison to NFL stadiums of similar capacity.

In 1977-78 the Broncos’ average ticket price was lower than all teams playing in comparably sized facilities, despite sell-out crowds.

The City and the Broncos have treated the phrase ‘comparable facilities’ as if it requires a restriction on ticket prices in comparison to NFL stadiums of similar capacity.

In 1977-78 the Broncos’ average ticket price was lower than all teams playing in comparably sized facilities, despite sell-out crowds.

Judge’s ConclusionJudge’s Conclusion

‘This [extrinsic evidence] lends credence to the argument that, when the Agreement was implemented, the Broncos interpreted Paragraph 25 to prohibit them from charging more for tickets and services than other teams playing in comparably sized facilities’.

‘This [extrinsic evidence] lends credence to the argument that, when the Agreement was implemented, the Broncos interpreted Paragraph 25 to prohibit them from charging more for tickets and services than other teams playing in comparably sized facilities’.