Thursday, June 12, 2014

Braintree Labs and "A" - the indefinite article excludes the singular?

Most of what I know about the Federal Circuit's recent Braintree Labs v. Novel Labs decision is what I read in Greg Aharonian's newsletter commenting on Hal Wegner's post. According to Aharonian and Wegner, the Federal Circuit in Braintree ruled that the word "a" (yes, the indefinite article) "excludes the singular" when used in a patent claim.
Note that when I write "a patent claim" I use "a" in the singular sense, in particular referring to the one claim I know about. There may in fact be more than one claim in this patent that uses the word "a" in the very phrase before the court. But there is no principle of patent law that would require the inventor to write more than one claim. Therefore, as a matter of law, the phrase "a patent claim" cannot exclude "one patent claim."
The patent claim recites:
    A composition for inducing purgation
    of the colon of a patient ..."

At the risk of breaking a* cardinal rule of law, writing, and common sense, I would like to add the following idea to the discussion of this case, even though I have done no more than skim the decision for the word "colon."

A* principle of claim interpretation - or statutory interpretation or any other kind of "construction" in the legal sense - is to look at the words surrounding the disputed language. Context may provide meaning that removes ambiguity. Here, I notice that "a patient" is the object of the preposition "of" which in turn is preceded by the words "THE COLON."

"THE COLON OF" can only belong to one patient at a* time. It certainly belongs to a SINGLE patient. That it could belong to a* group of patients (that is, a number of patients that exceeds "the singular") is -- absent some pretty spectacular surgery -- unlikely.

I will now read more fully to see whether the words "the colon of" gave a* moment's pause to any of the judges or lawyers arguing for this singular (in the figurative sense) meaning for the word "a," or whether the dissenting judge or lawyers on the other side thought at all about colons in the anatomical, not the grammatical, sense, and the 1:1 correspondence between (colon) singular and patient (singular).

Generations, nay centuries, of patent lawyers have understood and used the indefinite article to mean AT LEAST ONE or, in an even more common formulation, ONE OR MORE. As has been taught for years, including both TO me and BY me, an* inventor could claim a* "chair having a leg ..." and the claim would read on a chair with one, two, three, four, or any number of legs. Beyond question, it would read on a* chair with a SINGLE leg.
* I intend here to give the words "a" and "an" their ordinary meaning, and the meaning that was generally accepted among patent lawyers until Braintree. That meaning is "one" or, to be polysyllabic and grammatical about it, "the singular."

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