The Interpretation-Construction Distinction in Patent Law

The ambiguity of claim language is generally considered to be the most important problem in patent law today. Linguistic ambiguity is believed to cause tremendous uncertainty about patent rights. Scholars and judges have accordingly devoted enormous attention to developing better linguistic tools to help courts understand patent claims. In this article, we explain why this diagnosis is fundamentally wrong. Claims are not often ambiguous, and linguistic ambiguity is not a major cause of the uncertainty in patent law today. We shall explain what really causes the uncertainty in patent rights, how the erroneous diagnosis of linguistic ambiguity has led the literature off-track, and what will get us back on track to solving the uncertainty problem

1976 Montreal Olympics: Case Study of Project Management Failure

A successful engineering project must include its timely and economic completion. A project management failure can lead to delays and cost overruns. One example of a project that greatly exceeded its projected budget is the construction of the multiple facilities for the 1976 Olympic Games in Montreal. These included the Olympic Stadium, a velodrome for bicycle events, and the Olympic Village to house the athletes. This case study reviews the circumstances of the cost increases and the design decisions and other circumstances that led to them. The difficulties were brought on by an unrealistic schedule to complete the facilities before the fixed start date of the Games, combined with an unusually cavalier attitude toward project costs, exacerbated by political tensions. Although the original cost estimate for the facilities was $120 million, the final cost was$1.5 billion, with $830 million for the main stadium alone. Part of the justification for the expense of the facilities was the hope that the facilities would be useful for future athletic events—the record on this is mixed at best. The lessons learned can be applied to other projects to better control costs

What's in a Name? Price Variation in Sport Facility Naming Rights

There are two generally accepted ways of plotting the aggregate demand (AD) and aggregate supply (AS) curves in the goods market. One puts the price level on the vertical axis (the P - y approach); the other plots the real interest rate on the vertical axis (the r - y approach). This paper develops the theoretical connections between these two approaches that permit one to tell a coherent dynamic story with the AD-AS model and also explores the conditions under which one approach or the other yields greater insight into the working of the model.Advertising; Sports

Forcing Patent Claims

An enormous literature has criticized patent claims for being ambiguous. In this Article, I explain that this literature misunderstands the real problem: the fundamental concern is not that patent claims are ambiguous but that they are drafted by patentees with self-serving incentives to write claims in an overbroad manner. No one has asked why the patent system gives self-interested patentees the leading role in delineating the scope of their own patents. This Article makes two contributions to the literature. First, it explicitly frames the problem with patent claims as one of patentee self-interest rather than the intrinsic ambiguity of claim language. Second, it provides a counterintuitive answer to the question of why the patent system relies on patentee-drafted claims. Although giving patentees claim-drafting power undoubtedly leads to overbroad patent rights, such an allocation of drafting power is nonetheless socially efficient. This is because the Patent and Trademark Office (“PTO”) and the courts lack the information necessary to determine the correct scope of a patent in the first instance. Requiring patentees to write claims forces them to take a position, a process that discloses some of the patentee’s private information and reduces the complexity of subsequent decisionmaking by courts and the PTO. While patentees will overclaim, they cannot overclaim too much, and relying on an imperfect claim is better than having a court or the PTO make an uninformed guess in the first instance. The Article concludes by explaining the implications of this insight for the debate over claim construction