Boilerplate Language in Patents

The specification of U.S. Patent No. 10,000,000 is short – only about three pages long.  However, the patentee made room for the following boilerplate:

  • Although specific advantages have been enumerated above, various embodiments may include some, none, or all of the enumerated advantages.  
  • [O]ther technical advantages may become readily apparent to one of ordinary skill in the art after review of the following figures and description.
  • It should be understood at the outset that, although exemplary embodiments are illustrated in the figures and described below, the principles of the present disclosure may be implemented using any number of techniques, whether currently known or not. The present disclosure should in no way be limited to the exemplary implementations and techniques illustrated in the drawings and described below.
  • Unless otherwise specifically noted, articles depicted in the drawings are not necessarily drawn to scale.
  • Modifications, additions, or omissions may be made to the systems, apparatuses, and methods described herein without departing from the scope of the disclosure. For example, the components of the systems and apparatuses may be integrated or separated. Moreover, the operations of the systems and apparatuses disclosed herein may be performed by more, fewer, or other components and the methods described may include more, fewer, or other steps. Additionally, steps may be performed in any suitable order. As used in this document, “each” refers to each member of a set or each member of a subset of a set.
  • To aid the Patent Office and any readers of any patent issued on this application in interpreting the claims appended hereto, applicants wish to note that they do not intend any of the appended claims or claim elements to invoke 35 U.S.C. 112(f) unless the words “means for” or “step for” are explicitly used in the particular claim.

28 thoughts on “Boilerplate Language in Patents

  1. 6

    I have not read the specification, but to me the claim appears to be ok. Surely not the worst drafting I have ever seen. Could some experts elaborate why they consider the claim to be not good?

  2. 5

    Let’s look at claim 1:

    1. A laser detection and ranging (LADAR) system, comprising: a two-dimensional array of detector elements, each detector element within the array including:

    a photosensitive region configured to receive return light reflected from a target and oscillating local light from a local light source, and

    local processing circuitry coupled to an output of the respective photosensitive region and configured to receive an analog signal on the output and to sample the analog signal a plurality of times during each sample period clock cycle to obtain a plurality of components for a sample during each sample period clock cycle;

    a data bus coupled to one or more outputs of each of the detector elements and configured to receive the plurality of sample components from each of the detector elements for each sample period clock cycle; and

    a processor coupled to the data bus and configured to receive, from the data bus, the plurality of sample components from each of the detector elements for each sample period clock cycle and to determine an amplitude and a phase for an interfering frequency corresponding to interference between the return light and the oscillating local light using the plurality of sample components.

    That’s a whole lot of functional language without supporting “structure,” isn’t it?

    Surely the specification is replete with supporting material about how this functionality can be implemented. Surely the specification explains, in excruciating detail, how all of this functionality is not “abstract” – the technical problem, the technical advantage, why that solution is not “conventional,” and how the invention improves mankind and the universe at large. That’s the § 101 test, right?

    What’s that? The spec is three pages? Mostly boilerplate? Oh dear.

    Surely the inventor has a massive § 101 problem. Where’s the EFF to deem this subject matter unworthy of a patent?

    Oh, wait. The claims read: “circuit.” Surely that’s all the “structure” we need to avoid § 101, which absolutely isn’t selectively applied to certain types of inventions, which the courts can’t do because it’s not in the statute. Right? Right.

    Let’s waste no time here on discussing the relevance of § 101 to non-software fields (perish the thought!), because what the patent community really needs is more enabling disclosures for software patents.

    1. 5.1

      Well said again David. Note too that the “circuit” can be a general purpose processor configured with “software.”

      A/D converters -> processor .> A/D converters. This will simulate almost any circuit.

    2. 5.2

      Why is anyone surprised that this claim is cr @ppy?

      1. 5.2.1

        As noted previously for patent 10,000,000, there are issues a plenty.

        But as to your post here, please provide an example software claim that you feel is NOT cr @ppy.

        And yes, I note that someone else will occasionally ask you to do this (albeit you have never provided such an example).

  3. 4

    “However, the patentee made room for the following boilerplate”

    I think you mean the attorney for the patentee.

    1. 4.1

      I think you mean the courts made decisions making the attorney advise the patented to put all that boilerplate into the spec just in case.

  4. 3

    Dennis seems to think so.

    Speculating again, MaxDrei?

    As is (unfortunately) ever so typical of our resident EPO-Uber-Alles mouthpiece, MaxDrei opens his mouth and proves something that he is blithely (and seemingly perpetually) unaware of: his own limitations of knowledge and understanding.

    The intimation provided by MaxDrei (“ What purpose does it serve (other than to impress impressionable readers).” only shows that he continues to refuse from to drink from the well that he has so often been led to. Yet another horse dying of thirst….

    MaxDrei wants the takeaway to align with the Supreme Court’s view that “scriviners” are only running amuck. There can only be one reason (per MaxDrei’s intimation, and of course, that reason is for the benefit of the scriviner…).

    Nothing could be further from the truth.

    Also, MaxDrei attempts to impugn the use of boilerplate as somehow being only a US thing – also, something that bears no resemblance to reality.

    As opposed to MaxDrei (and his speculations), I asked a question at 1. A question that goes unanswered. It is always easier to cast shade, even if shade should not be cast because the reality of the details may indicate otherwise.

    Here, I have not bothered to see if the use of boilerplate is a good use or is a poor use. I leave that to the author to back up what seems like a broad (over-broad) based accusation.

    But that underlies the larger point: boilerplate IS used – and is used for a reason.
    There is NOTHING wrong – per se and as such – with boilerplate. Attorneys from ALL walks will use one form or another of boilerplate. The use thereof is not crass as MaxDrei wants the takeaway to be.

    Instead, the reflection of a good attorney (and a reflection, mind you, not as puerile of a purpose as MaxDrei indicates) is in the appropriate use of boilerplate. If anything, the “logical extreme” of MaxDrei’s view leads to the very opposite conclusion: heaping boilerplate mindlessly is “to signal to their clients that they are worse drafters than all the others.”

    With friends like these…

  5. 2

    This word “boilerplate”. I see it all the time, in relation to patent specifications written in the USA. But I never see it used in relation to those drafted elsewhere.

    So, is such text an artefact of the US legal system? What purpose does it serve (other than to impress impressionable readers).

    Is it so, that diligent US attorneys find creative ways to include ever more boilerplate, to signal to their clients that they are better drafters than all the others?

    If so, would you say that the strategy succeeds. Dennis seems to think so.

    1. 2.1

      In reality, what US courts do is find some pretext to invalidate claims of a patent all the time. The judges in the US have no honor. If they think a patent is junk, then they feel like it is OK to make something up and invalidate all the claims, ’cause, ’cause. The problem is that typically the judge is some person that has never had a science class in their lives and was appointed because of their friends or their promises to adhere to political philosophies.

      So basically you have some slime ball that will use any pretext to get you. That leaves patent attorneys in a very bad position. The nightmare is that some slime ball judge (about 80 percent of them) will get your client and you will look bad. The slime balls have no problem trying to make it look like it was a poorly drafted case. So we are in a position of trying to anticipate all the slime ball pretexts joe or jane slime ball might use.

      The USA is not a good place for justice.

    2. 2.2

      I’d guess that maybe 1 in 10 or 1 in 20 judges are actually respected in the USA by practicing attorneys as people that are honestly trying to apply the law. Most are seen as hacks that don’t belong there and that will do pretty much whatever they please for whatever petty little motive they have.

      We have no respect for our judges. Probably they would be better replacing the urinals. They could kneel down and open their mouths. That is about how much respect we have for them.

      1. 2.2.1

        I see. Thanks for that, Night.

        So, in answer to my question, is such fatuous and over-blown “boilerplate” an artefact of the US legal system, you would say Yes.

        And your answer to the question, does it serve any useful purpose? That then, I collect, would be No.

        I suspect that this is the point. I mean, this is what Dennis is inviting us all to confirm, is it not?

    3. 2.3

      I can sometimes retrace some of this boilerplate to a particular claim interpretation decision. I have yet to see a case where this boilerplate works. The description of an actual embodiment having the characteristics listed (a device where components are arranged in different way, providing different advantages) seems to me to be safer way to lead the judge to a better claim construction and/or to help the jury recognize infringement.

    4. 2.4

      Mein lieber Max,

      Just look at some A publications from last Wednesday:

      FR prio, EP3336447 : [0101] Naturellement, d’autres modes de réalisation auraient pu être envisagés par l’homme du métier sans pour autant sortir du cadre de l’invention définie par les revendications ci-après.

      FR prio, EP3335676 (divisional) : [0101] Various modifications and additions can be made to the exemplary embodiments discussed without departing from the scope of the present invention. For example, while the embodiments described above refer to particular features, the scope of this invention also includes embodiments having different combinations of features and embodiments that do not include all of the described features.

      GB prio, EP3335818 : [0086] It will be understood that the invention is not limited to the embodiments above-described and various modifications and improvements can be made without departing from the concepts described herein. For example, the different embodiments may take the form of an entirely hardware embodiment, an entirely software embodiment, or an embodiment containing both hardware and software elements.

      [0087] Except where mutually exclusive, any of the features may be employed separately or in combination with any other features and the disclosure extends to and includes all combinations and sub-combinations of one or more features described herein.

      Boilerplate is rarer in German-drafted applications, but it doesn’t take too long to find some:

      DE prio, EP3335860 : [0070] Die Erfindung ist nicht auf eine der vorbeschriebenen Ausführungsformen beschränkt, sondern in vielfältiger Weise abwandelbar.

      [0071] Sämtliche aus den Ansprüchen, der Beschreibung und der Zeichnung hervorgehenden Merkmale und Vorteile, einschließlich konstruktiver Einzelheiten, räumlicher Anordnungen und Verfahrensschritten, können sowohl für sich als auch in den verschiedensten Kombinationen erfindungswesentlich sein.

      GB prio, EP3337058 : [0040] Alternative embodiments of the invention may be envisaged, which may nevertheless fall within the scope of the accompanying claims.

      Most examiners will merely cross out the words “spirit of the invention”. I took up the habit of my instructor, and often crossed out entire boiler plate passages from the Druckexemplar, in the name of clarity. Never had a protest.

      Applicants would be more combative for the claims two part form, which they thoroughly disliked, as if it was done properly, it acknowledges how puny their contribution to the art is.

      I haven’t seen for a while that doozy of boilerplate stating that in the preceding disclosure “black” can be “white”, “one” can be “zero” or “several”, “above” is “below”, and vice-versa.

      BTW, is the British-style omnibus claim at long last dead, you know, “11. A gizmo substantially according to the preceding description and figures”?

      Then there are listings of so-called “preferred embodiments” that attempt to circumvent the silly 15 claim limit at the EPO.

      1. 2.4.1

        Ha Max!

      2. 2.4.2

        Got me there, eh Fly! Bravo. I should have written “drafting for” the USA rather than “drafting in” the USA.

        It would be an interesting debate between us though, how much of the “boilerplate” would nevertheless still be in those priority documents, even if their writers had no intention of filing at the USPTO at the end of the Paris priority year. After all, when you’re drafting, you need to cater for the peculiarities of every jurisdiction where your client has a business interest, don’t you?

        That’s the thing about boilerplate, isn’t it? It surely (?) doesn’t do any harm to include it, so best to include it, just in case.

        1. 2.4.2.1

          Got me there, eh Fly! Bravo

          “got”…?
          “there”…?

          Both your reaction and Night Writer’s reaction are a bit disappointing, given as you have been “got” on a nigh perpetual basis since, well, since like forever.

          I should have written “drafting for” the USA rather than “drafting in” the USA.

          Nice evasion. But did you check to see if any (or all) of the five quick examples were drafted for the USA? DO you really think it difficult to quickly find other examples that were not drafted to your (moving) target?

          Whatever you do, do not relinquish your target…

          when you’re drafting, you need to cater for the peculiarities of every jurisdiction where your client has a business interest, don’t you?

          That’s funny, coming from you, the person that perpetually wants to discount any drafting for the business interests of the US (with your EP-Uber-Alles schtick).

          It surely (?) doesn’t do any harm to include it, so best to include it, just in case.

          Nice case of “When you want to have an opinion and you want to give advice, but you really don’t know what you are talking about.”

          Maybe you want to pay attention, MaxDrei. I have already led you to the well. Yes, including inappropriate boilerplate may very well harm you when included. On occasion, the mindless inclusion may also very well not harm you. As I already posted, the good drafter includes pertinent boilerplate, and does not include that which may harm you – a classic choice of risk/benefit that is informed by thinking about (and understanding) what the boilerplate is for. And much to your error, boilerplate is used extensively in all sorts of legal drafting.

  6. 1

    Is there any particular issue that you have with one or more of these items?

    1. 1.1

      Does anyone think the final disclaimer here will change Fed. Cir. or IPR 35 U.S.C. 112(f) claim interpretation of a purely functional “system for” or “apparatus for” claim element? [But, as noted, perhaps confuse a D.C. judge?]

      1. 1.1.1

        The idea is you can read it to a jury.

        1. 1.1.1.1

          The judges you insult above know better than that.

          1. 1.1.1.1.1

            ‘Tis odd then that judges seem so easily “insulted,” while they are “free” to insult scriveners, all the while the dreck that they put out is truly deserving OF being insulted – not to mention that EVERY** state attorney oath calls for those insulted scriveners to NOT place the Court above the Constitution, but instead endeavor to hold even the highest court in the land accountable.

            **with the arguable exception of the Commonwealth of Massachusetts, which may be argued holds that attorneys there merely swear to treat the courts as they would the most important client – something that it subtly – but radically – different than NOT placing the court above the Constitution.

            1. 1.1.1.1.1.1

              “Different from.” — Scrivener

              1. 1.1.1.1.1.1.1

                However, note that there is a time and place for different than. When what follows is a clause, than can be the more elegant choice: My grandmother looks different than I remember. From works best when what follows is a noun or noun phrase: My grandmother looks different from that old photograph of her.

                from: link to dictionary.com (emphasis added)

                – better Scrivener

                1. If you place usage advice from dictionary.com over GMAU, then “better” isn’t the adjective I’d use. But you be you.

                2. Also, “miss smarty pants,” you left your comment without attribution.

                  So did you get your view from the GMAU that is Global Martial Arts University or from the GMAU that is Gospel Martial Arts Union?

                  (yes, I realize that you probably mean Garner’s Modern American Usage – but YOU did not make that clear in either your first unattributed post, or in your second post using an acronym without establishing what that acronym was) – if you are going to be snarky about language, you might want to get it right first yourself.

                  And further, Garner himself may side with me – this article from the LA Times at least indicates the very thing from dictionary. com that you scoff at: link to latimes.com

                  To wit:

                  “The commonly expressed view that ‘different’ should only be followed by ‘from’ and never by ‘to’ or ‘than’ is not supportable in the face of past and present evidence or of logic,” writes “Fowler’s Modern English Usage.”

                  Garner agrees.

                  Doubling down on your error – and doing so with undeserved snobbery…

      2. 1.1.2

        It may depend on whether the words of Congress are seen as binding (vis a vis, the requirement – and the authority – bound in 35 USC 112, as to who exactly gets to say “what the invention is”).

        Currently, led by the Supreme Court (no stranger to usurping Constitutional authority of another), we have the courts taking away that authority as written by Congress.

        (kind of mirrors your question on hewing to an understanding of how the law works in treaties, eh?)

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