Words like ‘practically’ and ‘substantially’ aren’t vague – they build flexibility and judges empirically can interpret them predictably based on case law
David Kappos, 2024 - attorney and former government official who served as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office from 2009 to 2013. Senate Judiciary Subcommittee on Intellectual Property Holds Hearing on Patent Eligibility Restoration Act, Hearing Transcript, 1/24, proquest Congressional, accessed via University of Michigan //DH
CHRISTOPHER COONS: We appreciate the input of everybody who's come to the table, participated, testified. Mr. Kappos, my last question, some stakeholders have said that PERA doesn't define key term substantially, practically, and that depending on the meaning courts apply to these words, it may unreasonably be expanded or contracted.
Do you share those concerns? How do you think courts will handle um, language like practically or substantially?
DAVID KAPPOS: No, I don't have the same concerns. I think this is exactly the kind of language that judges are extremely well suited to interpret. You don't want the legislation to be so tied down that there's no flexibility for judges to use judgment. And using words like practical and substantial are very much designed to enable judges to build case law around the statute over a period of time as they have in many other places and, specifically, in the patent laws.
So, I have absolutely no doubt that judges looking at PERA in its totality will do a great job over a short period in putting the additional nuance to those specific words, as needed.