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Are Patents too Vague?

Are Patents too Vague?

Adam Mossoff takes on the common claim that patent are too vague in his paper THE TRESPASS FALLACY IN PATENT LAW, by Adam Mossoff, 65 Fla. L. Rev. 1687.  The argument is often framed as patents are not like real property where you know if you are trespassing another person’s property.  This analogy is flawed, he points out, because property rights in land are not limited physical trespass.  Property rights include time (future interest), use, and physical boundaries.  The proper analogy would be with the estate or all the property rights associated with land.  Then he points out that critics of patents actually have no empirical data on litigation involving all aspects of ‘real property’.  He also points out that real property disputes often turn on the meaning of arcane terms and arise because legal drafting in not an exact science or math.

I would add that most of the commentators on patents are not legally or factually competent in reading claims.  In addition, neither are most judges.  (See Is the Supreme Court Competent to Rule on Patent Cases?)    This is not because patents are vague or purposely obscure or overly formalistic.  Drafting claims is a skill that takes several years to become proficient with.  The same is true of being able to interpret a paper on electromagnetics or quantum mechanics and these are very precise sciences.

Most of the people complaining that patents are too vague are not interested in the truth, logic, or reason.  They want to destroy all property rights or they are crony capitalists that want a patent system that favors them, particularly against individual inventors and startups.


THE TRESPASS FALLACY IN PATENT LAW, by Adam Mossoff, 65 Fla. L. Rev. 1687

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