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IP: 2 key points to guide claim constructions for lay juries

The ever-eloquent Judge Posner demands “ordinary English”

To paraphrase Gilbert and Sullivan, Richard Posner is the “very model of a legal intellectual”: first in his class at Harvard Law School, clerk for Justice Brennan, a judge on the 7th Circuit for more than 30 years, senior lecturer in law at the University of Chicago Law School, and prolific author and blogger on all manner of legal and economic issues.

Indeed, a 2000 study in the Journal of Legal Studies found that Judge Posner was the most cited legal scholar of all time. Faced with his monumental body of work, it is only natural to doubt one’s ability to read as fast as Judge Posner can write, but be of good cheer. Luckily, you need not dig deep into weighty tomes to find the judge’s wisdom: If you have time to read a single paragraph from his March 10 Order in Apple, Inc. v. Motorola, Inc. you will find a glittering gem or two about drafting claim constructions a lay jury can understand.

Honestly, I should probably stop here, but permit me a couple of paragraphs to restate two universal principles that Judge Posner so ably stated in just one.

1. Remember your audience. Lest there be any misconception, Judge Posner’s demand for claim constructions “in ordinary English intelligible to persons having no scientific or technical background,” if properly understood, is not in tension with the settled legal principle that claims are to be given the meaning that the terms would have to a person of ordinary skill in the art in question at the time of the invention. Undoubtedly, Judge Posner knows and follows this rule.


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Cullen Pendleton

Cullen Pendleton, Ph.D., is a litigation partner at Marshall, Gerstein & Borun LLP. He is an alumnus of the University of Houston, the University...

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