35 thoughts on “Time to Toss the General Dictionary?

  1. 34

    Guys and Dennis, I apologize for the unwarranted comment in my name on Feb 02, 2008 at 03:24 PM, and I will try to be more civil in the future. I simply didn’t like the premise that Dennis was attempting to set forth (I just bought a new dictionary), but now realize he was only trying to make an interesting and light Friday afternoon post. In the future I will devote my energies somewhere else entirely, where perhaps I would enjoy life more.

    Never to be heard from again, I remain squatting:

    fed cir clerk
    (not jimmie joe)

  2. 33

    I would reasonably logically conclude that in 2007 there were less CAFC decisions citing a dictionary than in recent history based on the above chart. That is all the post was supposed to be. “Here’s something interesting I noticed. What do you guys think? Discuss.” Lighten up, Francis.

  3. 32

    Just an ordinary inventor(TM),

    nice ad hominem attack – the recourse of those without a suitable response.

    Why don’t you just tell us what reasonably logical conclusion one can make based on the above chart?

  4. 31

    Number of cases citing “Phillips v. AWH” at the CAFC
    2001: 0
    2002: 0
    2003: 0
    2004: 4
    2005: 34
    2006: 54
    2007: 44

  5. 30

    The plot shows that the use of general dictionaries is still too high. The residual effects of TDS live on.

  6. 29

    jimmy joe,
    Is this your first time posting here?
    I’m gonna take a wild ass guess that you are “fed cir clerk” just diggin’ and diggin’ deeper into your hole.

    In the words of Monk, I could be wrong now, but I don’t think so.

  7. 28

    Wow, Just an ordinary inventor(TM), your display of your ignorance is astounding.

    Why would you assume that non-precs are included? Yes, your right that the rules on citing non-precs have changed, but do you know how much weight the Fed Cir gives to them? None, nada, zilch.

    And real anonymous, your posted definition seems to support FC’s post. What is your point?

    If these responses are reflective of a patent prosecutor’s response, maybe this is why Congress doesn’t listen to the patent bar.

  8. 27

    Wow. For all the crap MM takes on this blog, his Friday post hit it right on the head. Giants win!!!!

  9. 26

    “an implied assertion is just what you say it is – implying something”

    as·ser·tion /əˈsɜrʃən/ – noun
    1. a positive statement or declaration
    2. something

    “based on the chart, no intelligent reader of this post can ever come to the logical conclusion that there is a signficant trend”

    Fed cir clerk, if no intelligent reader would have come to that logical conclusion, are you posting your comments for the benefit of the non-intelligent readers?

    This is a waste of time, sorry.

  10. 25

    fed cir clerk,
    A good rule of thumb: When you find yourself stuck in a hole, stop digging.

    If “the numbers without more are MEANINGLESS,” why would you care whether or not they “included non-precedential opinions”? And why would you not assume from the title of the chart, “Number of CAFC cases citing ‘dictionary,’” that they are, of course, included?

    BTW, I recall that the rule changed to allow citing non-precedential opinions in briefs.

  11. 24

    First, note that I referred to the above posts regarding normalization.

    Second, an implied assertion is just what you say it is – implying something, in this case a trend.

    So if I just search lexis for a single and post the raw results, is that in any way helpful? I think not, because the numbers without more are MEANINGLESS.

    So to respond to your equivocal language (“which may or may not be significant”), my point is simply that, based on the chart, no intelligent reader of this post can ever come to the logical conclusion that there is a signficant trend.

    An even more basic point, and one which I don’t think was made above (so this might satisfy real anonymous), Dennis doesn’t even tell us whether he included non-precedential opinions. Come on, now.

  12. 23

    “Please explain how the numbers posted in the graph, without anything more, can support the implied assertion in the post’s title?”

    Assertion? Where? Did you miss the question mark? At most, Dennis was implying a trend (which may or may not be significant).

    But as for the so called normalization you sought, weren’t you late to the party, trying to throw up two day old news?

    link to patentlyo.com
    link to patentlyo.com
    link to patentlyo.com

    Perhaps fed ckt reader was harsh, but consider again what he said.

  13. 22

    I’m not an academic. If this blog becomes one for academics then I’m off. I was under the apprehension that it was a blog to amuse, educate and inform. Fed Cir Clerk sees it as a channel for publication of boring academic Papers, for him to peer-review. I would say he’s labouring under a misapprehension, and should perhaps better devote his energies somewhere else entirely, where perhaps he would enjoy life more.

    Actually, I think Dennis is using this teaser title for a serious purpose, to test the waters. Does one construe words from reference to standard dictionaries or overwhelmingly from their writer’s strict specific context (what was the inventor/writer using the language of the claim to mean to his PHOSITA reader)? That’s of world-wide continuing topical importance to the interpretation of patent claims. Have Dennis and his readers found this thread useful/amusing? Some comments more than others, I would think.

  14. 21

    Ok fed ckt reader and RA,

    Please explain how the numbers posted in the graph, without anything more, can support the implied assertion in the post’s title?

  15. 20

    “Did you mean to sign off as “fed cir jerk”? Because that’s more like it.”

    Naahh, reader – please don’t be too hard on him. He’s probably just not self-aware that his comment (“should be embarassed to post this stuff”) applies, in the first instance, to himself.

    Perhaps we could clone and patent him. If needed, we could use the dictionary definition of self-awareness to get around the 13th Amendment at the CAFC. :-)

  16. 18

    No offense, but this chart is totally, totally useless. As the other posters point out, it’s meaningless without some normalization.

    An academic should be embarassed to post this stuff.

  17. 17

    Well, I just wrote a paper on Gorham v. White and Arminak v. Calmar, and went to contemporaneous dictionaries (1880 and 18th cent. plus a 1930 edition of the O.E.D.) to see what the Supreme Court thought in them times what “person in the trade” meant, since the Calmar courts wiggle around the word “trade.” They were extremely helpful, and fun to read. Personally, I feel limited by the way the internet eliminates constructive browsing; I enjoy collateral learning.

    Thanks for all the design patent info, Dennis! Keep it coming!

  18. 16

    A linguist’s take on the Supreme Court’s use of dictionaries: link to people.ischool.berkeley.edu

    “But using a dictionary to determine the meanings of words turns out to be not quite the automatic or neutral procedure that most of us take it to be. Some dictionaries define words more broadly than others. And when a dictionary gives several meanings for a word, judges have a lot of discretion in deciding which of them is most appropriate.”

    “But Scalia himself hasn’t been above what the legal scholar Ellen Aprill calls ‘dictionary shopping.'”

    “He cited the definition of the word in the 1934 Webster’s Second — a dictionary that language traditionalists regard with the kind of reverence that folk purists have for Bob Dylan’s acoustic era. But if he’d wanted to argue the other way, he could have referred to the broader definitions of representative in the more recent Webster’s Third or the American Heritage, both of which he has found it convenient to cite on other occasions.”

  19. 15

    Dictionaries will always be considered as part of the Markman hearing, although they are no longer dispositive (if they ever were at all) and they may even be expressly dismissed in view of the specification itself. But having lots of dictionaries on hand is still a good idea.

  20. 14

    Well, since we are in the mood for fluffy statistics, how about the number of patents with the word “dictionary” in the claims

    year patents
    2007 210
    2006 204
    2005 132
    2004 123
    2003 130
    2002 148
    2001 123
    2000 163
    1999 156
    1998 163
    1997 114
    1996 80
    1995 73
    1994 78
    1993 55
    1992 51
    1991 59
    1990 48

  21. 13

    Don’t get rid of those dictionaries yet (especially Webster’s Third International which is the Federal Circuit’s favorite). Phillips has diminished the importance of dictionaries, but hasn’t done away with them entirely.

  22. 12

    Phillips notwithstanding, NO, I don’t think it is time to toss the general dictionary.

    I had a patent pending in the 80s that included an independent claim that recited — signals coded in binary arithmetic — and dependant claims that recited — machine detectable binary levels — but the Examiner took the position that I had failed to sufficiently define “binary” in the specification. However, the Examiner accepted a common (general) dictionary definition of binary and the claims were subsequently allowed.

    I’d had been left in a lurch without a dictionary. I believe a dictionary would server this and similar purposes today.

  23. 11

    “Very interesting. I wonder though, whether (1) the number of claim construction opinions or patent opinions is roughly the same every year, and (2) whether some of those dictionary citations might have nothing to do with claim construction. ”

    It’s Friday. Like the rest of us, Dennis is likely looking forward to a beer and watching Tom Brady cry on Sunday.

  24. 10

    Very interesting. I wonder though, whether (1) the number of claim construction opinions or patent opinions is roughly the same every year, and (2) whether some of those dictionary citations might have nothing to do with claim construction.

  25. 8

    “The chart is meaningless for its intended purpose of conveying trend. To be meaningful, it must be normalized; in other words, percentage of cases per year.”

    Over the last decade or so, the number of CAFC patent cases per year is fairly constant I think, around 350 …? I don’t there is anything close to 100% variation year-to-year, at least since 1997 or so.

  26. 7

    “Respectfully, the search is flawed.”

    “The chart is meaningless for its intended purpose of conveying trend.”

    And that color blue is so last year! C’mon, you guys criticize when the posts are too “academic”, and you criticize when the posts are light and fluffy. Relax.

  27. 6

    The chart is meaningless for its intended purpose of conveying trend. To be meaningful, it must be normalized; in other words, percentage of cases per year.

  28. 5

    Of course technical dictionaries are often more relevant than Webster’s and the like. And the lecturer I was referring to was certainly not limiting his advice to general dictionaries. Quite the contrary – his advice was to collect every technical dictionary you could lay your hands on. And that includes previous editions – after all, if a dictionary definition is relevant, one from a contemporary dictionary (i.e., the time the application was filed) is going to be the most relevant.

  29. 4

    Respectfully, the search is flawed. Looking only for discrete cases containing the word “dictionary” captures those which only include a citation blurb with that word, those stating that there is no need to consult a dictionary to discern the meaning of a claim term, etc.

    Further, people would be wise to not let their scorn for dictionary.com and Webster’s reach so far as to include technical dictionaries, the latter being exactly the sort of reference preferred when the specification doesn’t resolve the claim term.

  30. 3

    A dictionary describes usage of the general population, as opposed to patent specifications and trade journals that describe usage in technical arts.

    The data probably show that litigators are disputing general terms, such as “like”, “on”, “is”, etc, as opposed to art-related terms. The alternatives scare me too much. Want to go fishing with Ethernet cable anyone?

  31. 2

    “Apparently, his theory was that if you had enough dictionaries to wade through, you had a better shot at finding the one that said what you wanted it to say”

    A reasonable theory. Thank goodness Phillips slashed the tires on that garbage (and other garbage as well).

  32. 1

    I recall a frequent IP lecturer from Cleveland back in 2000/1 excoriating any patent litigator that was not out there trying to buy every possible dictionary they could get their hands on. Apparently, his theory was that if you had enough dictionaries to wade through, you had a better shot at finding the one that said what you wanted it to say.

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