William & Mary Law Review


The optimal scope of patent protection is an issue with which patent system observers have struggled for decades. Various patent doctrines have been recognized as tools for creating specific patent scopes and, as a result, implementing specific patent theories. One area of patent law that has not been addressed in the discussion on patent scope and theories is patent claim interpretation. This omission is particularly noteworthy because of the substantive role patent claims and the interpretation thereof play in the patent system, namely the framing of questions of patent infringement and validity. This Article will explore the not-yet-discussed relationship between claim interpretation methodology and patent scope. The discussion will focus on how changes in interpretation methodology affect patent scope, an aspect of methodologies that the Article identifies as their "claim scope paradigm." Introducing the claim scope paradigm concept is mainly beneficial for two reasons. First, identifying the claim scope paradigm allows different interpretation methodologies to be evaluated as to their impact on the substantive function of patent claims. A claim scope paradigm criterion represents a significant and worthwhile departure from the current standard of certainty used by courts and commentators. Second, recognizing claim scope paradigms facilitates the use of claim interpretation methodology as a patent policy lever. Interpretation methodologies can be highly effective levers, having the ability to inject patent policy at the most basic level of the patent process.