Albert Abbou is this week's guest blogger. A young intellectual property attorney and native Michigander Albert will be writing about how his personal experiences led him into the law, his Chaldean roots, and why he chooses to make Ann Arbor his home.
Albert Abbou - Post 4: Explaining IP Law
Posted By: Albert Abbou
Posted: 2/1/2009
As noted in my previous post, many critics take issue with the fact that judges have the role of interpreting patent claims. Analogously, some critics also disapprove of the current process in which patent infringement is found during patent litigation. Once a judge has construed the meaning of a claim, it is generally up to a jury to conclude whether or not the patent claim has been infringed by a so-called "accused product."
Generally speaking, patent infringement exists if an accused product consists of each element recited in the claim at issue. While this may sound straightforward, the actual process of making this determination can be quite complicated. Like the judge, members of the jury rarely have a strong technical background with respect to the invention. Thus, it can be rather difficult for a juror to assess whether a product contains each element of a claim if the juror cannot understand what the invention actually is or how it works. Another issue is that an accused product is typically not an exemplary prototype of the claimed invention. For instance, a given product may infringe a patent claim even if the product is facially quite distinguishable than the invention recited by the claims.
More particularly, consider a patent claim directed to a Flintstones-type car that recites two wheels, a car body, and a steering wheel. Based on this example, a modern day car would arguably be found to infringe the foregoing claim, notwithstanding the fact that modern cars are fundamentally different. That is, it makes no difference whether the car has four tires instead of two, is run by an engine, etc., so long as the car includes every element recited in the claim. While infringement can be simply seen in this case, it can be appreciated that finding infringement is much more demanding when a product and its corresponding elements are complex, not well known, and referred to by various names. For instance, it is much more difficult for a juror to conclude whether a product contains a certain element if the juror cannot understand what the element is.
Accordingly, some critics propose that patent law cases should only be tried by judges having technical backgrounds. Similarly, other critics suggest that patents should be litigated in courts specifically designated to judge patent law cases. In essence, critics believe that either of these approaches would ensure more efficient and just outcomes than those produced by the current model.
In any event, the foregoing examples merely provide a glimpse of the intricacies associated with patent law, many of which I am still in the process of learning. I am told that as a rule of thumb, it takes two to three years before a patent attorney actually becomes comfortable in drafting a patent application. Although two to three years may not appear to be very long, drafting patent applications hardly encompasses all of the tasks involved in the profession. For instance, it may take years to become familiar with filing patents internationally, licensing patents, litigating and enforcing patents, etc. In other words, one may become a relatively competent patent drafter after only a few years, but it may take a decade or two for a patent attorney to truly become well versed in the field. Nonetheless, I look forward to the process.