Thursday, August 27, 2009

The trouble with boilerplate

While reading a recent BPAI decision, I noticed a footnote which said:

The Appellants "request[] that this honorable Board of Patent Appeals and Interferences reverse the Examiner's decision in this case and indicate the allowability of application claims 1-24." In an ex parte appeal, however, the Board "is basically a board of review -- we review ... rejections made by patent examiners." ... We lack authority to indicate the allowability of claims.

Now, I'm certain that the writer of the appeal brief didn't think too much about his request for allowability it was simply what we call "boilerplate." But that's exactly the trouble with boilerplate we as writers don't think too much about, while we can't be sure what the impact of it will be on our readers.

Certainly no great harm was done in this case by the boilerplate I refer to. The Board read the statement, saw it as irrelevant to the decision, and moved on. But the footnote also tells us that the Board did recognize a request for allowability as legally irrelevant in an appeal brief. So I wonder if there's a risk of more subtle harm  does the careless use of boilerplate cause the Applicant to lose some credibility in the Board's and/or Examiner's mind?

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