[f] moving said second cart to said proximate end of said scanning device so that said trays in said second cart be passed through said scanning device at said proximate end.
Is the language used in patents archaic or simply intentionally obtuse?
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2It's a little of both. Most legal language is archaic, and a great deal of it is intentionally obtuse. In contracts, for instance, ambiguity is common and often resolved in torts.– John LawlerApr 26, 2017 at 22:38
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1you might want to google "plain language law" or the similar and surf the web a bit (don't confine yourself to first page results). It is a very interesting trend to me . This wikipedia article might give a quick sniff : en.wikipedia.org/wiki/Plain_Writing_Act_of_2010– Tom22Apr 26, 2017 at 23:18
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8Exacting is a better description than the words you choose. Patent writing is extremely picky work, so the language usage evolves from what's worked in the past more slowly than it does in everyday writing or speech.– Wayfaring StrangerApr 26, 2017 at 23:35
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4It's "legalese". The terminology is chosen because, some time in the past, less "picky" language led to loss of patent rights.– Hot LicksApr 26, 2017 at 23:43
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2 Answers
Patent lawyer here. I wouldn't call the language you cited either "archaic" or "intentionally obtuse." "Pedantic" or "hyperliteral" may be better adjectives.
The language you cited came from Claim 1 of US Pat. No. 6888460
Language in the claims section of the patent are considered the "metes and bounds" of the intellectual property right. That is, the claim language describes the precise extent of the patent owner's monopoly. It is necessary for the language to be as accurate as possible in order to alert everyone to the scope of the patentee's property right. Because human language is so imprecise, it is very difficult to write text that comes even close to the level of clarity one would want in such a description.
Some of the terms used are also jargon. Because patents are interpreted by courts, there is an entire history of court decisions determining the meaning of specific words. For example, the word "comprising" means "including the listed things but also potentially including other things as well" whereas "consisting of" means "including only the listed things."
In the language you cited, the word "said" in the phrase "said proximate end" makes it unambiguous that the reference is to the same "proximate end" as previously recited ("wherein said scanning device comprises a proximate end and a distal end"). One might also use the word "the" rather than "said," in this circumstance, but that's a matter of style.
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1So you're one of "those skilled in the art"? Patent writing can be a lot of fun, but also horribly painful. Apr 26, 2017 at 23:37
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3I don't spend much time writing them anymore, but I read and evaluate more than my fair share. Reading them can be painful, but reviewing something written by an expert practitioner can be very enjoyable. Using language precisely is an art, and it's amazing to see when it's done well. Apr 26, 2017 at 23:52
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1Being picky on your post, In my opinion "explicit" is a better description than "clear". There is a reason people may see this language as obtuse, and that is that it isn't clear to them, they don't find it easy to understand.– TheraotApr 27, 2017 at 0:16
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2Having participated in the patent drafting process as an "inventor", it seems like the opposite of hyper-literal to me. At least for software, it seems to be more a process of describing a completely fantastic object that doesn't exist, made up of entities that don't exist and don't correspond to the actual moving parts of the software, but that somehow (if the translator is to be believed, and didn't screw everything up) cover the same functional ground as the real thing.– hobbsApr 27, 2017 at 5:18
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2@hobbs Translated patents are almost always awful. Software patents are also generally fuzzier than patents in other arts. Also, there is a distinction to be drawn between the claim text and the written description. The goal of the description is to encompass every possible (and often impossible) permutation of the invention, this makes for broad language that often seems absurd to non-patent-lawyers. The goal of the claim is, as I wrote, to precisely describe the property right. Apr 27, 2017 at 6:09
In my opinion, the phrase you quoted is neither archaic nor obtuse. Typical of legal phrases, it is somewhat repetitive and stilted in the service of expressing a precise meaning.
"Said" in the phrase you quoted means "the particular one to which I last referred." The meaning is limited to that particular one, not another one, and not more than one. Despite the awkward sound of it, "said" is an economical expression that uses one word instead of several words.
You may be interested to learn the term "a term of art". It means a common word or phrase that is used to express an idea that is defined by a body of specialized knowledge. Every specialized field has its own vocabulary; many have terms of art.
Patent law is a recognized legal specialty. Patent law practitioners often have education in engineering or hard science, in addition to the law.
Descriptions in patent applications must be precise in order to demonstrate that the invention is novel and that it is not an obvious development of existing technology. That is why your quoted phrase repeatedly uses the term of art "said".
ETA: I am also a lawyer. I don't practice patent law, but I do practice in another specialty area.
