A Drafting Lesson From Judge Plager

Federal Circuit Judge S. Jay Plager, in a recent opinion in an infringement case, lays out a withering critique of some claims language. It’s a compelling read even if you don’t know exactly what a “continuous microtextured skin layer” is. As it turns out Judge Plager didn’t either, even after what must have been many times ploughing through the claims, and he goes into painful detail about why. He lambasts drafting styles that are larded with terms like “substantially” and “preferentially” and which intentionally include ambiguities that leave room “to later argue for a broad interpretation designed to capture later-developed competition.”