Using pastiche as a stylistic exercise for patents translation

Details

Written by Françoise Herrmann, Ph.D

Abstract

Why use pastiche as a stylistic exercise in patent translation, and how do you use pastiche for the purposes of understanding patent structure and function? This article examines those provisions of USC Title 35, CFR Title 37 and the MPEP, pertaining to form, structure and function of patents to answer both of these questions. In the process of answering these two questions, it is shown how the statutory aspects of patents clearly explain all the repetitions, both within and across patents that are so striking to patent translators. The use of pastiche as a creative exercise in style for understanding patent source texts is presented here with all due respect to real inventors, patent authors, and the intricacy of the statutes.

RUNNING HEAD: Pastiche and patents translation

Using pastiche as a stylistic exercise for patents translation Pastiche! What's pastiche?

According to Merriam Webster's definition, the term pastiche refers to: "a literary, artistic, musical, or architectural work that imitates the style of previous work; also such stylistic imitation". Thus the term pastiche, both as noun and verb, refers to the art of imitation or mimesis. For example, one of the most famous pastiches in the literary tradition appears in Raymond Queneau's book titled (in English) Exercises in style where the same story unfolds in 99 different ways. Indeed, all of the stories, in their own way, from the Geometric to the Gastronomic, tell a single story, of the narrator meeting someone on the S line bus, whom he witnesses arguing with someone else, and then meets again, at a train station, where he witnesses this time his lively conversation with someone who suggests adding an extra button to his coat. (Queneau,1947,1981).

In a nutshell then, this article examines how pastiche may be used as a stylistic exercise for grasping and understanding patent structure and function. But, in contrast to Queneau's exercises, this particular exercise in style only plays out once, albeit collaboratively.

Patents and patent form

Anyone who translates patents will tell you that one of the saving graces and beauties of patents is the consistency of their form or structure, to which all patent authors must abide. Whether the patent covers bronchodilators, blisters packs, crepe soles, flu vaccines, animal feed, monoclonal antibodies or Knock Out mice, the shape or conceptual mold into which the invention is disclosed - abstracted, described and claimed - is strictly regulated, strictly defined, strictly obligatory, even strictly punctuated. In fact, it is so regulated, that it is perfectly predictable. It follows that anyone doing patent translations will be struck by the repetitions, both within and across patents, although this is hardly coincidental. It is simply because the statutes, outlined in USC Title 35 (Federal Patent Law) and CFR Title 37 (Code of Federal Regulations), in the US, apply to all US patents, and their provisions cover matters of form and structure in great detail.

Examples of statutory provisions

Beyond the definition of patents and patentability found in the statutory provisions of US Federal Patent Law (e.g.; in USC Title 35, Chapter 10, sections 100, 101, 102 and 103), there are many additional rules set forth in the Code of Federal Regulations, CFR Title 37, and the USPTO's MPEP - Manual for Patent Examining Procedure, which further spell out the structure and form required for disclosing an invention.

The following are some of the provisions, extracted from CFR title 37, in regard to formal aspects of the disclosure of an invention:

- Title of the invention [CFR 37 § 1.72a] and abstract [CFR 37 § 1.72b] According to [CFR 37 § 1.72a], the Title of an invention must be 500 or less characters, and according to [CFR 37 § 1.72b] the abstract may not exceed 150 words. The abstract is required to be submitted on a separate sheet, and when published it appears on the cover sheet of the patent as INID number 57, that is, the, "Internationally agreed number (57) for the identification of bibliographic information".

- Detailed description and specification of the invention [CFR 37-§1.71a]
A patent includes a full disclosure of the invention for which exclusive rights are claimed. This section is called the specification of the invention. It must contain enough information for any person skilled in the art to make the invention or produce it, once the rights to exclusive use have expired. This is also a section of great interest to translators as it transits most often a source text.

- Prior and related art [CFR 37 §1.71(b)]
As part of disclosing an invention, the patent must specify all that is already known in the field of the invention, including what other patents have previously disclosed, and the information contained in related literature and documents. This is the background of the invention and it is referred to as the, "prior and related art".

- What the invention resolves [CFR 37 §1.71b]
Typically the invention arises as a solution or remedy to a problematic situation. For example, in a patent about crepe soles, the invention may concern a slip-proof solution to "slipping" on wet surfaces. In other instances the invention may improve a manufacturing process, making it profitable, or completely replace a previous one, or present a solution where none previously existed. In any event, the invention arises in the context of a problematic situation.

- Brief description of the invention [CFR 37 §1.73]
This is usually a summarized description of the invention, including the process and manner of making the invention, appearing before the section with drawings and figures.

- Drawings, illustrations or figures related to the invention [CFR 37 §1.74]
The inclusion of drawings or figures to support disclosure of the invention is an integral part of a patent, set forth in USC Title 35, Section 113 and reiterated in the CFR 37 §1.74. Drawings are intended to supplement any shortcoming of the rest of the description of the invention, and the description of the embodiments of the invention will always refer to the drawings, which are required to display numbers, or letters and preferably numbers, for the parts of the figures.

- At least one embodiment (or example) of the invention [CFR 37 §1.71b].
Another aspect of disclosure invokes the description of an instance or example of the invention, or what is termed an "embodiment" of the invention. For example, for the case of a crepe sole patent, one embodiment of the invention invokes the description of at least one of the slip proof patterns on the soles of the shoes, designed to prevent slipping on wet surfaces. This description of at least one embodiment is a deliberately non-exhaustive process (an exemplification only) since inventors want to make sure that they can claim as many applications of their invention as possible.

- The Claim(s) of the invention [CFR 36 §1.75a-i]
The disclosure of the invention must include, beginning on a separate sheet, a section where the inventor claims, in a very specific manner, that which is considered to be a part of the invention. This section is called the claims sections, and it marks a shift in the functions of the patent as the inventor is no longer disclosing but requesting (or claiming) protection for the invention. Thus, the claims sections is a very important legal section of the patent as it contains the details of that which cannot be used, copied, manufactured or produced without permission or a license.
The statutes in regards to the structure and form of claims are even more stringent than those for the specification of the invention. The following are a few of these regulations found in the various

paragraphs a to i of CFR 37 §1.75, in regards Claim(s) of an invention, USC35 Article 112 and in the USPTO MPEP - Manual for Patent Examining Procedure (section 608.01 on the Form of Claims). And as mentioned previously even punctuation and paragraph indents are statutory! The provisions of each paragraph are included verbatim when sufficiently succinct.

First, the MPEP - Manual of Patent Examining Procedures (Ninth Edition, 2014), specifies in Section 608.01 on the Form of Claims [R -11-2013] that:
"Each claim begins with a capital letter and ends with a period. Periods may not be used elsewhere in the claims except for abbreviations."

A rule, which means that each claim is one sentence long and only one sentence long, and consequently that very good punctuation skills are required in translation, since some claims run a full page or even more!

Secondly looking at various sections of CFR37 §1.75, and Article 112 of USC 35, the following regulations are provided in regards to the language use of claims and claims structure:

- Cross-referencing of claims with the specification [CFR 37 §1.75 d]. Although claims must appear in a separate section, on one or several separate sheets of paper, the language used in the claim must refer back to the specification so that meaning may be found in the specification. This is one of several provisions that actually explain the striking repetitions within a patent disclosure and, in particular, this is the reason why language use is sometimes almost identical at certain junctures of the patent document, when the author, for example, decides to use the first claim of the patent as the succinct summary of the invention [per the previously mentioned provisions of CFR 37 §1.73], and even as the abstract of the invention, or vice versa!

"The claim or claims must conform to the invention as set forth in the remainder of the specification and the terms and phrases used in the claims must find clear support or antecedent basis in the description so that the meaning of the terms in the claims may be ascertainable by reference to the description."

- Independent, dependent and multiple dependent claims [USC35-112] and [CFR 37 §1.75 f, g], The definition of these three sorts of claims offers a way of ordering claims for the various parts of an invention, without having to reclaim the whole or less restrictive parts. It follows that these three sorts of claims also give rise to an elaborate system for the computation of fees (outlined in CFR 37 §1.75c and elsewhere in the CFR37 and MPEP) to ensure that dependencies are included in the computation of claims.

For independent claims, provisions for the three part structure of the claim are provided in [CFR 37 §1.75e (1-3)] as follows:

1. Preamble of a claim [CFR 37 §1.75e (1)]
"A preamble comprising a general description of all the elements or steps of the claimed combination which are conventional or known,..".

2. The term "Wherein" or equivalent [CFR 37 §1.75e (2)]
"A phrase such as "wherein the improvement comprises..." serving as a bridge between the preamble and the body of the claim, or to introduce what is new and subject to further claim.

3. The Body of claim [CFR 37 §1.75e (3)]

"Those elements, steps, and/or relationships, which constitute that portion of the claimed combination which the applicant considers as the new or improved portion."

And beyond the three-part structure of a claim, there are also claim-related provisions that specify for example, the use of:

- Arabic numerals [CFR 37 §1.75f]
"If there are several claims, they shall be numbered consecutively in Arabic numerals".

- Indentations [CFR 37 §1.75i]
"Where a claim sets forth a plurality of elements or steps, each element or step of the claim should be separated by a line indentation".

Examining the provisions of the law for patent structure and the forms of expression for the information contained in a patent, provides the parameters of the patent genre. The statutes also explain why translators are reportedly so struck by the repetitions across patents, in seemingly such disparate inventions as mascara, fish feed, detergent, or car alarm systems, and why even within a single patent there are repetitions, since the claims section for example is required per the provisions of the law to refer back to the specification. Again, this is hardly accidental; it is simply because the same set of rules and regulations are applied, each time, to each invention, regardless of the subject matter.

For example, the claims section of all patents will contain claims that run a single sentence long. And each patent will present the invention in the context of a problematic situation after a review of the state of the prior art - regardless of whether the patent concerns lipstick, laparoscopic instrumentation, jet turbines, or wrinkle-free garments.

Pastiche fun - with all due respect to real inventors, patent authors and the intricacy of the statutes.

The statutory provisions of patent law, which constrain the expression of an invention, and thus account for the regularity of patent forms, actually make teaching introduction to patent translation a lot of fun! And as evidenced in the previous section in regards breadth and depth of details of the statutes, some fun is probably also of essence. Thus, once the provisions concerning the definition and patentability of inventions are examined, and the rules of disclosure understood, it becomes important to synthesize this large amount of information.

Pastiche, and the creativity that it offers, is also an exercise with which most novices are familiar, and if not, in which participation can be guided and prompted each step of the way, from start to finish of a patent draft. The following is a script for this process (with the implicitly or explicitly referenced statutes, appearing in parenthesis).

The first question: "What is your invention?" always arises as a complete surprise since pastiche is hardly what translators do, or expect to do in a translation course, much less involving patents and Patent Law. But, every time I have asked this question, I have always obtained some very fine answers.

- (According to CFR 37 § 1.72a) What is the title of your invention, in 500 characters of less? Examples of student pastiche inventions have included: the palatable toothpaste patent, Device for keeping sox matches in the laundry, and a scarf hanger.

Then, because the statutes account for a very predictable patent structure, it is just a matter of prompting the unfolding disclosure of the invention with more questions, each invoking the various sections of the regulations mentioned previously.

- So, your what does your invention concern? Please introduce your invention in a single sentence using the verb "concerns" or "relates to".

- (According to CFR 37 §1.71b) What does the previous art look like and what is the problem with the previous art?
More specifically, considering the suggested pastiche patents: What's wrong with all the previous toothpastes? What's wrong with washing sox in the laundry, what happens? And what is the problem with hanging scarves, or can you hang scarves? What sorts of solutions to these problems already exist? Are there toothpastes that are supposed to be palatable, but taste terrible anyhow, and why? Are their solutions to mismatched sox, such as tying them together, and if so how are they tied? In a knot, with a string, or with a clip, and if so, what sort? Are there solutions to hanging scarves? If so, what sorts of solutions and what's wrong with them all?

- (Also, according to CFR 37 §1.71b) How does your invention remedy this problematic situation? What does the invention do to resolve the problems of prior art? In light of the pastiche patents: Does the toothpaste really taste good and how? Do the sox stay matched and clean and untangled, and how? Do the scarves hang neatly next to conventional hangers, without slipping out of the hanger, or crinkling, and how?

- (According to CFR 37 §1.73) Can you give a very brief statement of the invention?
At this point, the invention has to be elaborated in a bit more detail. For example: the formula of the toothpaste; the dimensions, size, and materials used for the sox device or for the scarf hanger, etc.

- (According to CFR 37 §1.74) Are there any drawings, if yes can you describe each of them?

- And finally, (again according CFR 37 §1.71b), can you explain in greater detail one embodiment of your invention, e.g.; one example of the palatable toothpaste including details of all the ingredients, their measurements and formulations, as well as perhaps some tests that were performed for determining the palatability of the formula, with an indication of the palatable scale that was used, and of the results etc.

And so forth, prompting for each part of a patent according to the provisions of the CFR Title 37, and USC title 35, and the MPEP, wherever appropriate, including a statement at the end of the specification, concerning the scope of the invention and the non-limiting exemplification that was provided.

Pastiche of the claims section is usually covered in another classroom session, after everyone has had time to think about the specifications of the group's invention, and the pastiche of the claims of the invention also occurs after all the provisions concerning claims and claim structure, mentioned earlier, have been presented in class, in a manner that parallels the presentation of the statutory provisions for the description of the invention.

With the Claims section of a patent, the process repeats a second time, minding the provisions of paragraph c in section §1.75 of CFR 37, which as mentioned earlier call for language uses that refer back to the specification (i.e.; required or statutory repetition).

It is in the pastiche claims section that the preamble and body of a claim will be prompted, including the use of "wherein" or equivalent expression, as a bridge between the old and the new information of the claim (according to CFR 37 §1.75e (1-3)). For the scarf hanger pastiche patent, a preamble that includes "A clothes hanger with a curved frame and hook on top, and multiple loops attached to it, whereby, the clothes hanger allows for the organization and storage of scarves and similar items".

And it is in this section also that independent, dependent or multiple dependent claims are constructed, using the various parts of the patent specification that were detailed previously including, wherever appropriate, all the preferences, ranges, sizes and possible materials of the invention. For example, in the clothes hanger pastiche, a claim dependent on the first independent claim, where it is further claimed that: "the diameter of the holes through which the scarves are threaded measure 2 to 3 inches". And another claim dependent on the first claim "wherein the clothes hanger is made of wood, plastic or metal,” but not of multiple dependency, as the second claim which referred to the diameter of the holes through which the scarves are threaded may be produced of a different material than the frame of the hanger, etc.

It is here too that efforts will be deployed to use such linguistic formulations or "patentese" that make some students cringe, such as the terms: "preferably, more preferably, even more preferably and most preferably". For example, in the scarf hanger pastiche: "the width of the widest part of the hanger frame is between 10 to 15 inches, and most preferably between 13 to 17 inches so that it is comparable in size to conventional coat hangers, and able to be hung alongside said conventional coat hangers".
It turns out that the process of prompting and thinking about a pastiche invention, according to the rules for disclosing or describing real ones, affords a genuine opportunity for understanding what a patent document does, and this much, beyond the legal aspect of securing exclusive rights to produce, distribute and use the invention. Indeed, it becomes very clear that the patent's function is also to disclose an invention within the context of a problematic situation, in exchange of all the IP rights conferred in an award. And thus the definition of a patent comes full circle, and as the header of this section indicated: it is also a lot of fun to engage in this sort of creative exercise, and to let everyone's imagination run a bit wild before harnessing it in the statutory structure.

Pastiche as a tool for grasping the disclosure function of patents

What pastiche does for the development of patent translation skills is to synthesize the conceptual structure of patents and the disclosing function of the patent genre. Once you have understood the conceptual mold or form into which the invention must be disclosed, indeed all inventions, then you already know a great deal about the contents of the document at hand, regardless of the domain or particular subject matter. This is invaluable information because it frees up lots of room to focus on the actual terms of the invention. For example, in an infant formula patent, the information previously acquired about structure and the disclosing function of the patent, frees up room to search for all the terms that make up the composition of a formula, and to research exactly how the tests were conducted to highlight the effectiveness of a particular formula. Whatever information is retrieved in translation searching tangents, there is an already an existing understanding of the patent genre, its structure, form and function, that enables the translator to always fall back on her or his feet, re- centering the information, in regards the whole patent, and its disclosing or claiming functions.

What pastiche does for patent translation

What the pastiche exercise does, with its novice invented subject matter, is to lead the group through the whole disclosure of an invention, from the point of view of the inventor, disclosing and claiming his or her invention. This creates a deep conceptual understanding of the genre, which is a pre¬requisite for the translation of complex inventions, where the greatest expenditure of energy is needed to translate the terms of the invention, without spending any on figuring out how all the information fits together in a single document.

Pastiche qualifies as an "ah-ha" experience, into which translation is naturally framed. And, best of all, it a non-threatening approach to complex subject matter and formulation. Everyone can understand the problem of "palatable toothpaste" and of "mismatched sox in the laundry" or of "hanging scarves"! It is far more difficult to figure out monoclonal antibodies! And yet both the make-believe and the real deal will go through the same steps to disclose and claim the invention.

In any event, if you are unconvinced, try it! Or imagine it! Just going through the motion of a disclosure will demonstrate your understanding of these texts, and this an absolute pre-requisite of translation, a fortiori patents translation. ~( :>

References

- Queneau, R. (1947) Exercices de style. Paris, France : Editions Gallimard.
- Queneau, R. (1981) Exercises in style. Translated by Barbara Wright. Second Edition. New York, NY: New Directions Publishing Corp.
- USPTO (2014) Manual for Patent Examining Procedure (MPEP) Ninth Edition. Searchable edition: http://mpep.uspto.gov/RDMS/detail/manual/MPEP/current/d0e18.xml
- US Code Title 35 - Patent Law http://tinyurl.com/br8i5gn
- US CODE OF FEDERAL REGULATIONS - TITLE 37 http://www.uspto.gov/web/offices/pac/mpep/consolidated_rules.pdf