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Poor writing, not specialized concepts, drives difficulty with legal language

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Re: Poor writing, not specialized concepts, drives difficulty with legal language

#171

Post by AlbertCory »

johndhi wrote: post #101
_ggwa wrote: post #93

My experience working as a patent examiner agrees fully with the title: legal texts tend to be hard mostly because they're poorly written. (DOC lawyers make me add this: This post is just my personal opinion, not that of the USPTO, DOC, US govt., etc.) I've been trained in patent legal terminology, which isn't that bad. Patent documents are still frequently difficult to understand. I have one application on my docket…

If the examiners can't enforce enablement, doesn't that mean it isn't a true requirement? And that in fact patents wind up being drafted not for the layperson?

Excellent question.

Enablement is a joke in software patents. I actually did research on this and "written description", and (from memory) some judges have said that you need "structure" in your application, and having a box on your diagram labelled "access control" can be that structure. A person of ordinary skill in the art could construct it from those words. There's no need to provide any further details on the access control.

  Before someone points this out: obviously if "access control" is not part of the claimed invention, then you don't need to specify it beyond a box. But then you probably wouldn't have put it in the diagram in the first place.
There's an empirical test that the PTO could do: take some software patents and give them to a large sample of people skilled in the art (which, if I remember correctly, is often two years of relevant experience plus a BS degree in computer science). "Relevant experience" would mean "in the field of the patent," e.g. if it's automobile battery management software, experience in missile guidance doesn't count.

See how many are able to make and practice the invention with a "reasonable amount of experimentation."

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#172

Post by giantg2 »

tunesmith wrote: post #155
xhevahir wrote: post #94

Earlier quoted context omitted.

The assumption of most of the comments here is that bad writing is a matter of incompetence, but in the case of public policy I think Hanlon's Razor no longer applies. Given what we know about Texas politics and American ballot measures in general, it's quite possible that the ambiguity was introduced deliberately to give big landowners (or rather their lawyers) extra wiggle room. If that's true then the only communi…

I haven't researched it heavily, but wasn't that also true for the 2nd amendment? I doubt all the folks that ratified it agreed on its meaning.

That might be true of all the early amendments, given that they aren't painstakingly defined like modern laws. It might also be that they did agree (the ones who voted for it) and it's lost to history (federalist and antifederalist papers have some background, as do the similar state level constitutional provisions about arms, the press, etc).

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#173

Post by dtgriscom »

AlbertCory wrote: post #88

IANAL, but I AM a patent agent, which means I passed the Patent Bar. So I haven't dealt in contracts, but a lot of the same considerations apply to patent claims. There is some claim language which is absolutely not required and any lawyer who uses it is just showing off. The article mentioned "aforesaid" which is a prime example in contracts (in patent claims, it's just "said"). For example: A TCP packet, comprising…

In 1990 I worked with a lawyer to submit a patent (cool idea, although it never made me any money). We were both new to the process, so it was a learning opportunity all around.

A priority of mine was to use clear and transparent language. So, I'd write something up that was human-readable, he'd legalese it, I'd re-human-readable it, and we'd iterate. It felt like we were taking a walk through document space; he'd push towards the "Legally Tight" pole, and I'd push towards the "Intelligible" pole.

I think the result [0] was pretty good.

[0]: https://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=...

(P.S. Why isn't there a simple PTO URL for "show patent number XXXXXXX"???)

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#174

Post by moffkalast »

BurningFrog wrote: post #63
torginus wrote: post #39

I think this "poor writing", as in hard to understand writing with long backreferences is due to the same reasons as why many academics are terrible at explaining things, as well as why source code is hard to read. I should know, others usually like pointing out how terrible I am at explaining things. And I think I know why. When I make a naive attempt at describing a complex, interconnected concept, such as a piece…

Explaining something to another human is hard for people "on the spectrum", in part because they don't have a strong "theory of mind". Instead of understanding and/or inquiring how the other person's mind state differs from yours, and what gradual steps might lead them to greater understanding, they tend to treat people like a file system with a missing file, and stream the relevant data into them, assuming it will a…

> they tend to treat people like a file system with a missing file, and stream the relevant data into them

Pshhhkkkkkkrrrrkakingkakingkakingtshchchchchchchchcchdingdingding

Connection established

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#175

Post by wolverine876 »

oblio wrote: post #126
bluechair wrote: post #117

Earlier quoted context omitted.

I've rewritten the clause by moving "prepositional phrases" into the noun phrases to avoid as much nesting as possible. For example, instead of saying "the husband of the woman, I'd replace it with the woman's husband." Here's what I think it says: "This constitutional amendment authorizes the legislature to set the ad valorem taxes total reduction amounts that may be imposed for general elementary and secondary publ…

Aren't such long phrases horrible writing, kind of by default?

"At times he [the author] may indulge himself with a long one, but he will make sure there are no folds in it, no vaguenesses, no parenthetical interruptions of its view as a whole; when he has done with it, it won't be a sea-serpent with half of its arches under the water; it will be a torch-light procession."

- Mark Twain (via The Economist Style Guide)

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#176

Post by unyttigfjelltol »

dctoedt wrote: post #50

Lawyer and contract-drafting teacher here. The biggest problem with unreadable contracts is that we have too many L.O.A.D.s: Lazy Or Arrogant Drafters. (You can decide for yourself: L.O.A.D. of what?) There's a relevant Dilbert cartoon: [0] To simplify contract language, the biggest bang for the buck comes from SSSP: Short, Single-Subject Paragraphs, which are much easier to read; to review and revise during contract…

To extend this L.O.A.D. point, the worst, most unreadable contracts are drafted by nonlawyer paraprofessionals deputized by their organizations to patchwork previous contracts that may have been somewhat readable, into a Frankenstein mess. It's somewhat akin to assigning the office manager to write software code. Businesses do it because they think contracts should be simple so anyone can write them adequately. Those organizations are half right.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#177

Post by kube-system »

hn_throwaway_99 wrote: post #48

For everyone commenting "laypeople aren't the intended audience", this monstrosity was a recent Texas constitutional ballot proposal, i.e. all voters in the state were asked to vote on it: > The constitutional amendment authorizing the legislature to provide for the reduction of the amount of a limitation on the total amount of ad valorem taxes that may be imposed for general elementary and secondary public school pu…

Part of the political art of introducing a ballot referendum is phrasing your amendment in a way that makes it more likely for you to win. The goal isn’t necessarily to be accessible.

Most of the referendums that come up in my local jurisdiction are often criticized for their hostile phrasing.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#178

Post by wolverine876 »

xhevahir wrote: post #94
hn_throwaway_99 wrote: post #48

For everyone commenting "laypeople aren't the intended audience", this monstrosity was a recent Texas constitutional ballot proposal, i.e. all voters in the state were asked to vote on it: > The constitutional amendment authorizing the legislature to provide for the reduction of the amount of a limitation on the total amount of ad valorem taxes that may be imposed for general elementary and secondary public school pu…

The assumption of most of the comments here is that bad writing is a matter of incompetence, but in the case of public policy I think Hanlon's Razor no longer applies. Given what we know about Texas politics and American ballot measures in general, it's quite possible that the ambiguity was introduced deliberately to give big landowners (or rather their lawyers) extra wiggle room. If that's true then the only communi…

> bad writing is a matter of incompetence

Effective, clear expression needs training, practice and attention. Homo sapiens write as we do because in only 5,000 years we haven't evolved to write naturally and must labor at it.

Clear writing also needs clear thought, obviously. "Thinking is the hardest work there is, which is the probable reason why so few engage in it."

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#179

Post by AlbertCory »

dtgriscom wrote: post #173
AlbertCory wrote: post #88

IANAL, but I AM a patent agent, which means I passed the Patent Bar. So I haven't dealt in contracts, but a lot of the same considerations apply to patent claims. There is some claim language which is absolutely not required and any lawyer who uses it is just showing off. The article mentioned "aforesaid" which is a prime example in contracts (in patent claims, it's just "said"). For example: A TCP packet, comprising…

In 1990 I worked with a lawyer to submit a patent (cool idea, although it never made me any money). We were both new to the process, so it was a learning opportunity all around. A priority of mine was to use clear and transparent language. So, I'd write something up that was human-readable, he'd legalese it, I'd re-human-readable it, and we'd iterate. It felt like we were taking a walk through document space; he'd pu…

in Chrome, you can just type "US" in the address bar and it will probably work.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#180

Post by oblio »

wolverine876 wrote: post #175
oblio wrote: post #126

Earlier quoted context omitted.

Aren't such long phrases horrible writing, kind of by default?

"At times he [the author] may indulge himself with a long one, but he will make sure there are no folds in it, no vaguenesses, no parenthetical interruptions of its view as a whole; when he has done with it, it won't be a sea-serpent with half of its arches under the water; it will be a torch-light procession." - Mark Twain (via The Economist Style Guide)

I was actually thinking about that, and most of that phrase is an enumeration, it's easier to parse.
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