“Through All the Verbal Variances, However, There Runs this Common Core of Thought and Truth . . . .”

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For those of you who, like the bulk of humanity, may not be entirely up to speed oBenjamin_Cardozon the 1930s patent jurisprudence of the United States Supreme Court or my own patent scholarship, it should not be apparent why my blog is named Verbal Variances.  So I will pretend that you care, explain, and hope that you read on.

The title of this post is a quotation form a 1934 Supreme Court patent opinion by Justice Benjamin N. Cardozo. Although most modern jurists and attorneys might prefer the more familiar and condensed phrase,”in a nutshell,” that phrase has already morphed into a URL, and the corresponding website looks a great place to buy nuts, chocolate, and dried fruits.  Also, Justice Cardozo, my law school’s namesake, penned the “verbal variances” phrase when addressing which kind of evidence should be required for rebutting the presumption that a patent is valid. Years later, Justice Cardozo’s words became key in helping me find my voice for my writings on patent law.

At the Benjamin N. Cardozo School of Law, I learned to write concisely, like a modern attorney. Although I would never expect to execute written flourishes with the skill of Justice Cardozo, I quickly learned that I should probably never make the attempt. The time for such things has passed. And so too has any hope for having a dictionary rely on me as an authority for a definition, like some have with Justice Cardozo. For example, Merriam Webster defines the word “verbal” with a quote from then-Judge Cardozo’s 1921 Harvard Law Review Article, “Ministry of Justice,” an article that helped pave the way for the founding of the American Law Institute.  The dictionary entry is:

of, relating to, or involving words rather than meaning or substance <a consistency that is merely verbal and scholastic — B. N. Cardozo>

Describing the difficulties judges often have in abandoning laws, Justice Cardozo acknowledged that certain problems arise when judges kick the can down the road:

There is a loss too of simplicity and directness, an increasing aspect of unreality, of something artificial and fictitious, when judges mask a change of substance, or gloss over its importance, by the suggestion of a consistency that is merely verbal and scholastic.

As a second year law student taking patent law while the Supreme Court began showing signs of readdressing patentable subject matter for the first time in about 25 years, I observed to my professor that it seemed like the Supreme Court might not understand or read its own opinions on the topic, as perhaps best evidenced by the cases of Diamond v. Diehr and Diamond v. Chakrabarty. I will address this topic in more detail in later posts, but for now, suffice it to say, my scholarship began incorporating Justice Cardozo’s sentiments well before I realized his influence.

My admiration for and purposeful-yet-feeble attempts to emulate Justice Cardozo began while I was researching my Law Review Note and I stumbled across a different instance of his use of “verbal.”  My Note concerned the evidentiary standard for rebutting patent law’s presumption of validity, a topic the Supreme Court had last considered in Radio Corporation of America v. Radio Engineering Laboratories, Inc., 293 US 1 (1934). In that case, the Supreme Court dealt with a challenge of prior invention to a patent’s validity. Writing for the Court, Justice Cardozo synthesized prior case law to conclude that a successful challenge requires clear and convincing evidence. As he put it:

Through all the verbal variances, however, there runs this common core of thought and truth, that one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance.

Despite a cacophony of calls from academia, members of the patent bar, and even the Supreme Court in dicta that perhaps it was time to lower this standard to the “dubious preponderance,” I determined that these calls were confused and inconsistent, and seemingly based on inaccurate assumptions, stemming in large part from ambiguities in the writings of others. Accordingly, I recommended that the Justice Cardozo’s evidentiary-standard rule should be left alone because, essentially, the patent bar likely did not understand the issue as well as Justice Cardozo once did. I wrote:

In this Note I try to avoid increasing the verbal variances of the presumption of validity. Sometimes this requires mirroring the ambiguities of others to avoid misinterpreting their writings. Other times this requires seemingly circumlocutory language, for which I apologize. On the bright side, any confusion the reader may have while reading this Note helps support the proposition that the presumption of validity’s role in patent law is not understood well enough to justify modifying it.

This was a lonely position to take. I could not find other law review articles that recommended maintaining the status quo. But I found comfort by signaling my belief that Justice Cardozo would have been in my camp by trying to insert some of his panache into my Note’s title, The Burden of Establishing Patent Invalidity: Maintaining a Heightened Evidentiary Standard Despite Increasing “Verbal Variances.”

Finding that I enjoyed drafting legal commentary, and having identified a North Star in Justice Cardozo, I continued my scholarship in the follow-on articles of Investigating Patent Law’s Presumption of Validity—An Empirical Analysis and Investigating Patent Law’s Presumption of Validity, Part II: An Empirical Analysis of How Unconsidered Evidence and Evidentiary Standards Affect Jury Verdicts.

I was flattered to find that others actually read these papers, as first evidenced by a Wall Street Journal article and later a citation in IBM’s amicus brief in the case of Microsoft v. i4i, 131 S. Ct. 2238 (2011), the case in which the Supreme Court, for the first time since 1934, revsited whether a patent’s validity needed to be established by clear and convincing evidence, and, relying on Justice Cardozo’s “verbal variances” synthesis, confirmed that it did. Ever since, in everything I write, I wonder what Justice Cardozo would think of it—apart from believing that, from a “verbal” perspective, he would probably observe that I use adjectives somewhat clumsily.

The phrase “verbal variances” thus has tremendous significance to me both personally and professionally. So, as I turn to blogging as a new outlet for my commentary, the phrase was the obvious choice for my blog. And, of course, the URL was not taken.