webster's be damned, read the patent

According to the US Patent and Trademark Office  (USPTO), judges should disregard dictionary definitions when reviewing patent claims that are at issue in the litigation.

In an amicus curiae brief filed in a closely watched case that could affect how patents are interpreted, the PTO said the court instead should analyze terminology within the context of the patent application itself.

"The increased reliance on dictionary definitions as a foundation for claim meaning has generated inconsistent and unpredictable results," PTO General Counsel James Toupin wrote. "In some instances, beginning with a dictionary definition has resulted in a broadening of claims," while in other instances it has resulted in a narrower definition.

The Court of Appeals for the Federal Circuit announced in July that it was addressing the issue in an en banc hearing of Phillips v. AWH, 03-1269, and invited third parties to submit amicus briefs (i.e. arguments and opinions by educated and scholarly third parties) by September 20, 2004.

The court specifically asked the PTO to weigh in on this issue and the USPTO's response is a clear indication of the problem of using dictionary definitions to construe the scope of the claim.  The most common scenario is when a dictionary definition is broader than what is intended when the claim is written/issued.  This is desirious for the patentee because it broadens the scope of patent protection.  The tension is that dictionaries are not static documents: they evolve over time.  A broad dictionary defintion may be narrowed over time or vice versa -- a narrow definition may evolve and be broadened. 

Pegging the meaning of a term to a dynamic and evolving source may lead to the true scope of the claim not being knowable until the claim is actually litigated.  This situation is bad for both the patentee and the public and would appear to frustrate the purpose of the patent system -- full and definite public disclosure in exchange for a limited and well defined monopoly right.

Any other thoughts?

UPDATE: the Blawg-o-sphere is posting fast and furious on this one.  Patently Obvious has a short synopsis and links to 12 of the Amicus briefs.  They are looking for the remaining 8 -- can anyone help them out?