The Interpretation-Construction Distinction in Patent Law

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims. In this Article, we explain why this diagnosis is fundamentally wrong. Claims are not often ambiguous, and linguistic ambiguity is not a major cause of the uncertainty in patent law today. We shall explain what really causes the uncertainty in patent rights, how the erroneous diagnosis of linguistic ambiguity has led the literature off track, and what will get us back on track to solving the uncertainty problem. authors. Tun-Jen Chiang is Assistant Professor of Law, George Mason University School of Law. Lawrence B. Solum is John Carroll Research Professor of Law, Georgetown University Law Center. The authors thank Will Baude, Eric Claeys, Kevin Emerson Collins, John Duffy, Richard Gruner, Timothy Holbrook, Peter Lee, Mark Lemley, Doug Lichtman, Oskar Liivak, Jonathan Masur, Lisa Larrimore Ouellette, Laura Pedraza-Farina, Arti Rai, and audience members at presentations at the IP Scholars Conference, the University of San Diego, the Henry G. Manne Faculty Forum, and PatCon 3 for comments and suggestions.