Abstract
The creation of property rights in abstract concepts, such as invention, is a conceptually difficult process, a process made harder in the context of the patent right by the multifaceted nature of the chosen definitional medium: words. Words are familiar to us; we use them every day and appear to communicate with ease. But words are inherently tricky things, layered with nuance and meaning. Our familiarity with words breeds complacency for we feel we instinctively ‘know’ what they denote and therefore expect others to use them in the same manner to convey the same meaning. In the majority of cases this is unproblematic, but with patents—entities given boundary and form by the words used to describe their subject-matter—the repercussions of mis-communication are acute. This article examines the problem of conveying property's boundaries by words alone and considers the mechanisms used, and problems faced, by the courts in both the UK and the US, two systems (as George Bernard Shaw did not say) divided by more than a common language, when defining and interpreting property in invention.
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