Today I reminded a colleague of the oft-quoted maxim in patent law that “a patent may not, like a ‘nose of wax,’ be twisted one way to avoid anticipation [finding of invalidity because something in the prior art already did what the patent describes] and another to find infringement.” He just looked at me blankly and asked “what in the world is a ‘nose of wax’?!?” and suggested that I must be making that up or misquoting something.
To prove I was not making the expression up, I did a quick westlaw search for “nose /3 wax /s patent” and yielded several results with some cases containing this expression issued as recently as July 2007! The first case we could find with this expression was issued by Justice Bradley on the U.S. Supreme Court in 1886. In holding that a patent disclosing “a method of preserving the color and flavor of shrimps and other shellfish” was not as broad as the patentees claimed it to be, Justice Bradley wrote that
Some persons seem to suppose that a claim in a patent is like a nose of wax, which may be turned and twisted in any direction, by merely referring to the specification, so as to make it include something more than, or something different from, what its words express.
White v. Dunbar, 119 U.S. 47, 51 (1886) (emphasis added). There are at least six Supreme Court opinions using this phrase between then and now, as well as many lower court opinions.
We then turned to the dictionary for guidance regarding “nose of wax,” but several dictionaries only define the phrase to mean “a person who is pliant and easily influenced,” (see, e.g., here), but there is still no guidance regarding what a “nose of wax” actually is or was to start the metaphor in the first place.
My assumption was that a “nose of wax” must have been a little wax plug that could be easily positioned and melted for sealing certain things many, many years ago, but this assumption was not based on anything other than a hunch. Another thought was that maybe the expression had its genesis in the theater of yesteryear, referring to fake noses made of wax that could be reshaped or reformed, or repositioned on the face depending on the role played by an actor.
Another quick google search landed this surmise from a self-appointed “word detective”:
According to the Oxford English Dictionary, “nose of wax” antedates Justice Bradley by about 350 years. Meaning “a thing easily turned or moulded in any way desired; a person easily influenced, one of a weak character,” it first appeared in print in 1532, and was commonly used until about 1700 to describe attempts to “reinterpret” Biblical passages to suit one’s convenience. Whether the phrase originally referred to, as you say, a party nose, a disguise or a stage prop is unknown, but one of those sources certainly seems likely. The phrase is very rarely heard today outside of Supreme Court opinions. . .
Hmmm, well, if it is this hard to figure out what “nose of wax” refers to, perhaps the metaphor is long lost to this generation (if not to the last 10 or more!) and should be probably be replaced with something more relevant (and understandable). Of course, legal writing, with such an emphasis on stare decisis does make a perfect preservative such long-lost metaphors. After all, we would not want to accidentally overturn Supreme Court precedent by updating their crusty metaphor, right? If the Supreme Court said it, then it does not matter what it actually means or referers to, right?
Still, this makes me wonder, along with the “word detective,” what other “long-lost musty metaphors we might find in the Justices’ prose” or just in society generally, being twisted daily like a wax nose.