Advice to a Young Would-Be Patent Law Scholar - 05 (NEVER and ALWAYS)

What about all those rules that begin NEVER or ALWAYS?

For example, my own invention is "NEVER use 'clearly' or 'merely' more than once in ever 25 pages."

What does that rule do? It probably does NOT make you count how many pages between your first and second use of MERELY. But it probably DOES make you self-conscious every time you write either of those words. And that is the reason for NEVER and ALWAYS rules. They lie in wait, pouncing on you when you violate them. Maybe you can convince yourself that violating them is OK this once. I manage to do that, from time to time. But every time you read the violating text, your inner voice will say "Really? You just HAD to do that? You couldn't find a way around it?" And sometimes you, or I, reply, "Silence! Yes, violating the rule this once was brilliant. But I won't do it again, I promise. Or anyway, not this year."


By the way, for more on merely/clearly, see MERELY/CLEARLY.

A friend (OK, Terry Kearny, then at Fish & Neave, now at Latham Watkins) once told me he'd been taught NEVER to use Moreover or Furthermore. I use them, but again, I cannot do so without remembering Terry. He, and his teachers, were correct about these words. I appreciate that often they are used because the author has not organized the presentation with enough care, or has not figured out how to marshal those 'more' facts in the most persuasive way.

Advice to a Young Would-Be Patent Law Scholar - 04 (NUMBERS and DATES)

Yes, my teachers taught me that the numbers from zero to twenty should ALWAYS be spelled out in words. For 21 and higher, use digits.

See NEVER for how to cope with writing rules that begin NEVER or ALWAYS.

But "to spell or not to spell" is not the beginning of the story, it is the end. First, the writer must decide whether to use numbers at all.

Only Use Numbers If You Absolutely Need To

As a new associate fresh out of law school, I learned from White & Case partner David Hartfield (d. 1983) that you do not use specific numbers unless you really need that level of specificity. Hartfield explained that the reason to avoid numbers is that they are too noticeable. They catch the reader's eye. If you absolutely must convey to the reader that it was 75,608 lemons, not a lemon more nor a lemon less, OK, go ahead and state the number. But if all the reader needs to know is 'thousands and thousands of lemons,' it's an unnecessary distraction to write 75,608. Hartfield convinced me. And ever since, I consider the unnecessary inclusion of precise numbers to be as much a sin as the unjustifiable failure to provide precise numbers.

Dates are another kind of number you should strive to omit. It is rare that the month, day and year really matter. For example, consider an event that happened on April 9, 1923. If four related events occurred on April 8 (aka the day before), April 10 (aka the day after), April 16 (aka exactly a week later), and on Mother's Day 1924 (aka a little over a year later), then perhaps using the precise dates is the easiest and fastest way to communicate the information. If, however, there are no related events, and all that matters is that something happened between the two world wars or during the Roaring Twenties, then we do not need to know 1923, let alone April, and we certainly don't need to know 9.



Lawyers and judges often use exact dates in briefs and opinions when they don't need to. The year may be relevant but sometimes even it can be omitted. Relative time is often what matters: did the next thing happen before the week was out? Or in less than a year? Or had more than two decades elapsed? To express the temporal relationship between what began in January and was completed in May, you could write "X happened and some months later Y happened" rather than naming the months. Of course, if the story turns on the cold weather getting warmer or the long nights becoming shorter, then specifying January and May may be helpful. But maybe not. Good writing means thinking about everything you ask the reader to read: every word, every number, every date.

Use Tables for Chronologies

When I teach, I use my own materials and I edit just about everything, including descriptions of the sequence of events in R&D, the PTO or the courts. I revise chronologies for several reasons. First, the court may jump around rather than time-ordering the facts. Usually that slows down the reader more than it helps. Second, judges write paragraphs. I prefer tables for things like chronologies: Dates go in the left column and events in the right. Time marches down the page. Events can be described in phrases rather than sentences. Extra columns can be added for, say, the actor or, in a chronology of litigation rulings, the winner.

Yes, many intelligent people find tables daunting. But people interested in patent law are usually visual thinkers who process information in tabular form quickly. We make connections faster and we find things jumping off the page more readily from a compact table than from pages of narrative. Which do you like better: the chronologies in my edited versions of KSR v. TELEFLEX or Sanofi v. Apotex or in the originals, 550 US 398 (2007) and 550 F.3d 1075 (Fed. Cir. 2008)?

Rev. 3/7,8/15