Legal Commentary

Following up from my previous post on patent language, it often eludes people (even patent lawyers) that much of the intuitive appeal of patents hinges on a rhetorical trick.  The intuitive appeal of patents is based on a supposed quid pro quo: the patentee gets the invention that he creates.  The rhetorical trick is how to define this invention.  Invariably, patentees who create one version of something seek to obtain a monopoly over every version of the invention.  For example, a person who invents the first bicycle might say:

I claim as my invention a transportation device comprising a handlebar and two wheels.

This sentence sounds clearly correct, and the inventor has created a bicycle.  But patent law deems this sentence to really mean a monopoly over every transportation device with a handlebar and two wheels, including future motorcyles that the patentee did not create.

As I detail in this article, the idea of quid pro quo as a basis for patent grants is an illusion.  Every patentee is using this rhetorical trick to claim a broader class of things than his actual creation, the question is how abstract one gets in describing the invention.  For example, the claim above could be reworded more abstractly to describe "a transportation device comprising wheels," which would then create a monopoly over every wheeled device including cars and planes.

Sometimes the trick works and the patentee obtains his patent.  Sometimes the trick fails and he doesn't.  And whether the patentee should obtain a broader class of things than he creates is a very tricky question.  But in all cases there is a rhetorical trick doing much of the work.  Those who maintain that the patent system is fair because it contains a quid pro quo -- the patentee gets what he creates -- are relying on empty rhetoric.