Displaying Patent Language in Patent Litigation

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As lawyers, we are always arguing about documents, and we often need to display those documents in court. In patent cases, displaying documents is particularly important because the patent’s language describes the invention. In today’s post, I’ll talk about how to display this language in an understandable, readable and trustworthy form for the judge or jury.

Importance of the Patent’s Language

The primacy of a patent’s language comes from the patent statutes. For example, 35 U.S.C. § 112 requires that inventors describe their inventions fully and clearly, and that they point out their invention in the claims:

"The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, ….

The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. …"

35 U.S.C. § 112

In light of the key role of patent language, patent litigators often need to display patent language in court to argue about the meaning of the language.

The Three Requirements: Understandable, Readable and Trustworthy

Whenever you display document language in court, you must make sure that (1) the audience understands what is being shown; (2) the language is readable; and (3) that the judge and/or jury trusts that you are displaying the language accurately.

Displaying Your Patent Language: Slides vs. Live Presentation

How do we recommend presenting patent language? First, you need to decide if you will be presenting prepared slides, or showing magnified documents live on Trial Director, Sanction, an Elmo, a poster board or another live display technology in court. There are advantages to both approaches. In this post, I’ll assume that you have decided to use pre-prepared slides of patent language, and save for another day the discussion of Trial Director or Sanction versus prepared slides.

Features of the Sample

We often use the format above for displaying patent language because it meets the three requirements outlined above. In particular:

Understandable: The format shown in the sample helps the jury or judge understand the context of the quoted language. By showing the patent in the background with yellow highlighting on the quoted paragraph, the sample visually reminds the viewer of the source patent document.

Readable: The text box on the right allows us to display the key language in a clear, crisp font that can be sized for easy reading in court.

Trustworthy: A slide displaying language without context can be misinterpreted as argument rather than evidence. By putting the source patent pages in the background with highlighting for the source text, the slide implicitly communicates the authenticity of the quote.

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Published In: Business Torts Updates, Intellectual Property Updates, Professional Practice Updates, Science, Computers & Technology Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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