Patent Claims are Objectively Bad English

From Dalle

Recently, a group of leading language researches published a study showing that legalese is confusing. Of course, we all knew this, but they also tested several hypotheses for why legalese is confusing. Specifically, they tested whether it was because of the words or the syntax. Interestingly, they found that the primary reason it is hard to understand is because of the frequency of something called center-embedded clauses. These are phrases placed in the middle of sentences that tend to separate words that depend on each other.

Meanwhile, here is a typical patent claim (feel free to zone out and skip as much as you need):

1. A system for image recognition in an image recognition platform, said system comprising: an interface which receives an image; said interface receives a location of interest; a neural network implemented by a computer with a processor; wherein said neural network comprises a visual layer and a first hidden layer; wherein said visual layer is located below said first hidden layer; wherein said neural network receives said image and said location of interest; wherein said image is connected to said visual layer; a parameter layer; wherein said parameter layer is added to said neural network; a representation layer; wherein said representation layer is added to said neural network; wherein said parameter layer has information for coordinates, width, height, orientation, or type of shape for said location of interest; wherein said representation layer represents a value, values, or range of values that said parameter layer has for said location of interest; wherein said representation layer has a weighted link to a second hidden layer, connected horizontally from side of said neural network; wherein said second hidden layer is located between said visual layer and said first hidden layer; wherein said second hidden layer is located above said visual layer; wherein said second hidden layer is located below said first hidden layer; a correlation layer; wherein said correlation layer is located above said first hidden layer; the computer trains the neural network to correlate said location of interest with said image. — US Patent №11,074,495

As is normal in our profession, that’s all one sentence. A single sentence that includes 14 “wherein” clauses, which are one of the favorite forms of center-embedded clauses in the patent profession.

So if this kind of language is so hard to understand why do we do we do it?

In a recent interview with Lex Fridman, one of the studies authors postulated a few reasons that lawyers might do this:

1. They don’t want people to understand what they are writing; and
2. They want their writing to sound lawyerly.

In my experience, these are not the main reasons, though. Other important reasons include:

3. Separating a term from its definition can lead to ambiguity regarding whether the definition applies in a particular context.

4. Using conventional legal syntax makes it less likely to raise red flags during multiple rounds of review, so once a particular way of writing becomes the norm there are advantages to sticking with it.

And or course, for patent lawyers, the guidelines of the of the United States Patent Office include a statement that some interpret as a requirement that all claims fit in a single sentence. Here is what the USPTO’s manual (the MPEP) says about it:

While there is no set statutory form for claims, the present Office practice is to insist that each claim must be the object of a sentence starting with “I (or we) claim,” “The invention claimed is” (or the equivalent). — MPEP 608.01(m)

In other words, patent lawyers write bad english because we are required to. Now, there is a bit of wiggle room in the rule, but the fact that remains that patent lawyers are subject to actual rules that make them write bad English.

So what can we do about it? Well, a little formatting can go a long way. Consider the same claim above, but with some helpful line breaks and indentation. You can even add capitalization or boldface to make certain terms stand out:

1. A system for image recognition in an image recognition platform, said system comprising:

an INTERFACE which receives an image;

— said interface receives a location of interest;

a NEURAL NETWORK implemented by a computer with a processor;

— wherein said neural network comprises a visual layer and a first hidden layer;

— — wherein said visual layer is located below said first hidden layer;

…

— US Patent №11,074,495 (reformatted using dashes for tabs/indentation)

But whatever you do, as patent lawyers we should recognize the following:

1. Claim language is objectively confusing;
2. We can mitigate this using clear organization and formatting; and
3. We don’t have to use claim-like language in parts of the patent we want to be readable.