Wei Wu

Freedom-to-operate (FTO) means the ability and confidence to use, make, or sell a product or process without fear of infringing the intellectual property (IP) rights of others. An FTO analysis identifies and evaluates patent infringement risks (and potentially other types of intellectual property) and provides valuable information for research and technology commercialization. Many companies conduct an internal FTO analysis for the development of a new product or process, redesign of an existing operating unit, or change of manufacturing process or raw materials. Some may choose to conduct an FTO analysis only when the commercialization of a product is likely to generate a threshold amount of profit. This decision may depend on the budget, the likelihood of litigation, and the potential revenue generated by the sales of the new product or service.

Patent drafting relies on the precise and strategic use of language to protect innovative ideas. A subtle misuse of adverbs can render a patent vulnerable to attacks on its validity. Words like “whereby”, “wherein”, “thereby”, “such that”, or “to” frequently appear in patent drafting, and they are often used to introduce an additional process, situation, purpose, or result. A seemingly innocuous choice of words can tip the scales of patentability and infringement. In patent drafting, every word holds the power to shape the future of innovation.

Recently, Netflix released a documentary titled, “The Most Hated Man on the Internet,” which is about anti-revenge porn activists and their efforts to take down the website, IsAnyoneUp.com. The site was founded by Hunter Moore and allowed anyone to anonymously upload nude photos with social media handles or to submit sexually explicit photos of others without their consent. The documentary follows Charlotte Laws, whose daughter’s photos were shared on the site, as she launches a campaign to shut it down.

“A” is one of the smallest words, but it is not the simplest—most Supreme Court judges can disagree on its meaning. In Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the Court issued a 5-3 decision and held that “a” meant “one” in a statute regarding “a notice to appear.” Although the Niz-Chavez case is not about patent claim interpretation, it behooves us to pay attention to this tiny word. Soon after the Supreme Court decision, this issue has appeared again, this time in a patent case.

To quote a popular saying: “Let’s eat grandpa. Let’s eat, grandpa. Correct punctuation can save a person’s life.” And incorrect punctuation can cost millions of dollars. Do you know when to use a comma versus a semicolon? Do you know how to indent a plurality of elements in a claim? Do you know when to write “patent, copyright, or trademark” or “patent, copyright or trademark”? As Judge David J. Barron said: “For want of a comma, we have this case.”… Although there are no hard and fast grammatical rules, it’s better to err on the side of caution, following rules that courts have recognized.