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August 13, 2020


Many thanks for flagging up this case, delicious for anybody looking in from Europe. Almost as tasty as the "Chef America" bread-baking case.

Here in Europe, claims are construed with "synthetical propensity" that is to say, building up meaning, like a reader does who is skilled in the art, rather than breaking down meaning, as a lawyer does who is bent on finding indefiniteness wherever he (or she) can.

I haven't read the case yet, but a case in which the outcome hangs decisively on "half-liquid" versus "semi-liquid" is, at least for me, a treasure trove "Must Read".

One piece that rings in my ears is the result of changing words from the certified translation of the priority document. The court gave no weight to it because it was modified!

Translations aren't as simple as many think.

Changing words, Bernie, indeed! Although quite what difference it makes, to switch between "semi" and "half" I'm not sure. As I write this, I am only semi-conscious, that is to say, half asleep. Is that any different from being semi-asleep or half-conscious? One joy of the English language is that for every good old Saxon term there is one in Norman French.

But wait, "half-liquid" might mean "having a viscosity somewhere between solid and runny" or it might mean "a mixture consisting of 50% liquid and 50% something else". Then again, perhaps it is just an artefact of a lawyerly drafting style, in which for every term you use, to follow it up with a list of all the synonyms you can think of.

Of course, the basic idea the court follows must be right: that if you do not know whether or not you are infringing, the claim should be held indefinite. But is that the case here? Isn't this case yet another example of finding a claim invalid by using a short cut, to avoid getting into the jungle of obvious Y/N?

Solids do not flow and hence do not have a viscosity. I do not know what anyone attempting to say 'viscosity of a solid' would be trying to say. 'Runny' is not a marker to which a half way point could be measured between something that is 'runny' and something to which it is nonsense to try to use a term.

As to "lawyerly drafting style," anyone prescribing to a "follow it up with a list of all the synonyms you can think of" is not, can not, and should not be thought of as an attorney.

Care to have a go at a third pitch?

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