Strategies for Writing about Innovation: Navigating the Relationship between Technical Documentation, Patent Prosecution, and Technology Transfer

Abstract

Problem: Technical writers rarely work on patent applications, but the typical documents writers prepare during research and development are important during patent disputes. Patent disputes are so costly that the potential for these disputes weighs heavily on the minds of those preparing patent applications. The relationship between technical documentation and the legal processes surrounding research and development need to shape a writer's documentation practice. Research question: What legal concepts do technical writers need to know when working in research and development? Key concepts: Patent prosecution is the process of obtaining a patent. Technology transfer is the communication that places an innovation into the marketplace. Patent disputes arise when a party believes its patent rights have been infringed. The work of technical writers becomes relevant during patent disputes. Two Supreme Court cases inform the process for reconstructing the meaning of patent claims during a dispute: <formula formulatype="inline" xmlns:mml="http://www.w3.org/1998/Math/MathML" xmlns:xlink="http://www.w3.org/1999/xlink"> <tex Notation="TeX">${\rm Markman \,v.\, Westview\, Instruments, \, Inc.}$</tex> </formula> and <formula formulatype="inline" xmlns:mml="http://www.w3.org/1998/Math/MathML" xmlns:xlink="http://www.w3.org/1999/xlink"> <tex Notation="TeX">${\rm Phillips \,v. \, AWH Corp. \, Markman}$</tex></formula> limits the audience who determines the meaning of a claim to the judge instead of a jury, and Phillips establishes the role written documents have in a patent dispute. The <formula formulatype="inline" xmlns:mml="http://www.w3.org/1998/Math/MathML" xmlns:xlink="http://www.w3.org/1999/xlink"><tex Notation="TeX">${\rm Phillips}$</tex> </formula> case shows how a judge might use technical documentation to determine the meaning of a patent claim or term. From these cases, we can draw strategies for preparing technical documents. Key lessons: While impossible to know prior to a patent dispute how a document will affect the outcome of the dispute, technical communicators can adopt three strategies for preparing precise and complete documents. First, technical writers can adopt a “liminal” practice—the ability to interact as needed with different disciplines. Second, technical communicators can approach new subjects with assent, a type of seeking understood in order to fully explore a new technology. And third, technical communicators can approach writing about research and development as a technical translation practice to translate highly scientific or technical language into precise plain language. Implications to practice: By developing a liminal practice, technical communicators can build a robust documentation practice that includes the contextual nuances essential for work in patent prosecution and technology transfer.