In patent or patent applications, the claim defines, in technical terms, the extent to which, the scope, the protection afforded by the patent, or the protection sought in the patent application. In other words, the purpose of the claim is to define a subject covered by a patent (or attempt to be protected by a patent application). This is referred to as the "notification function" of a patent claim - to warn others about what they should not do if they want to avoid violation obligations. Claims are very important both during prosecution and litigation.
For example, the claim can read:
- "A tool for catching rats, said equipment consisting of a base, a spring member paired to the base, and..."
- "The chemical composition for cleaning windows, says the composition is substantially composed of 10-15% ammonia,..."
- "The method for calculating the future of life expectancy, says the method consists of data collection including X, Y, Z, analyzing data, comparing the results of the analyzed data..."
Video Patent claim
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In most jurisdictions, a patent is a right to exclude others from making, using, importing, selling or offering for sale material determined by a claim when a claim is for something (equipment, material composition, system, etc.). If the claim for the method, the right to exclude is to exclude any party from performing all claims steps. To exclude a person from using a patented invention, patent owner, or patent, it is necessary to indicate in the trial that what others use is included within the scope of the patent's claim; therefore, it is more valuable to obtain a claim that includes a set of minimal limitations that distinguishes the invention of what came before ( i, called prior art). But the fewer restrictions in claims, the more likely it will be to include, or "read on," what happened before and was rejected during the examination or found invalid at a later time due to a lack of novelty or clarity.
Maps Patent claim
History
Patents do not always contain claims. In many European countries, patents do not contain claims until the 1970s. Before that time, it was often difficult to decide whether a product infringed on a patent, as the only basis for knowing the level of protection was a description, given the prior art. Claims have been an important part of US patent applications since the enactment of the Patent Act of 1836.
However, even among patent law systems where claims are used as a reference to determine the scope of protection afforded by a patent, the manner in which the claims are used may vary greatly. Traditionally, two types of claims systems exist:
- "central claim system", which, according to the claim, identifies the "center" of the patented invention. The exact scope of protection depends on the true nature of the inventor's contribution to the art in the technology concerned.
- "peripheral claims system", which, according to its claims, identifies the correct edges, or limits, of the protection provided. In this system, the burden of preparing a good claim is much higher in the applicant's patent (or on his advice). The applicant receives the protection he asks for and almost no more, provided the discovery is new and unclear. This theoretically facilitates a third party to check whether a violation might exist or not.
No patent system today is purely either central or peripheral, but the system used in Germany and most continental European countries is considered to be more central than the system currently used in the UK, USA, and especially Japan, which is more peripheral. In recent years, the Japanese system has become more peripheral, while the system used in the United States is becoming more central as the resort increases in US patent litigation to equivalent doctrine to expand the scope of unexpected claims, until the US Supreme Court reverses that trend in the case of < i> Warner-Jenkinson in 1997.
Requirements and structure
In most modern patent laws, a patent application must have at least one claim, which is an important determinant of the patent and the main subject of examination. However, in some patent laws, filing dates may be obtained for applications that do not contain any claim.
European Patent Convention
Under the European Patent Convention (EPC), claims must determine the protection issues sought in terms of technical features. These technical features can be structural (eg spikes, rivets) or functional (eg fasteners).
Regarding the structure of the claim, under the EPC, so-called "preamble" differs from the meaning of "introduction" contained under US patent law. In an independent claim in Europe, the preamble is anything that precedes the phrase "characterized in it" or "characterized by" in the claim written in accordance with the so-called "two-part form", and therefore everything that is considered to be known in combination in one the previous art document, the closest previous art document. For this reason, in Europe, claims opening is sometimes also called "pre-characterization portion".
United States
Claims may include the following sections:
- An opening describing the class of the present invention, and optionally its properties, objectives, or principal areas: "A device..." "Therapeutic method for treating cancer..." "Compositions having affinity for proteins X... "This preamble may also refer to other claims and correct them, for example," Method of claim 1... "(See" dependent claims "below.).
- The phrase "transition" that characterizes the elements that follow. The most commonly used "comprised", "containing" and "include" phrases and (under some patent laws, especially the US) are preferred, because it means "to have at least the following elements..." and therefore open (inclusive) and do not exclude additional restrictions. The phrase "consists of" and "basically consists of" is (under some patent laws, especially the US) is more restrictive, because it means "to have all and only" or "almost only" and is therefore closed (exclusively). In the US, the phrase "consists of" does not include any additional restrictions, while the phrase "consists essentially of" excluding additional constraints that would "materially affect the basic and novel characteristics of the claimed invention".
- A set of "limits" which together represent the invention: "X, Y, and Z connect to X and Y." The elements should be described as if they interact or work together to achieve the desired result. The differences between elements and constraints are described in the All elements test article. Optionally, a purpose clause that further explains the overall operation of the present invention, or the object achieved by the present invention ("where Z simultaneously controls X and Y," or "where Z achieves the objective W by controlling X and Y, "etc.). The "where" clause limits the scope of the claim. The other objective language forms are "where" and "thus" clauses, similar to the "where" clause just described, and the usage statement intended in the opening claim (depending on the fact of the case, the opening may or may not limit the scope of the claim; in this case is the "essence of the invention").
Interpretation or claiming
Claims often use the correct language. Certain words commonly used in claims have certain legal meanings determined by one or more court decisions. This meaning may differ from common usage. For example, the word "composed", when used in US patent claims, means "at least consisting of". Conversely, the word "composed" means "consisting only", which will lead to a very different scope of protection.
In addition, in US patent practice at least, inventors can "act as their own lexicographer" in a patent application. That means that an inventor can give a general word or phrase a very specific meaning and different from the normal definition of a word or phrase. Thus the claim shall be interpreted in light of the definitions given in the patent specification. The patent specification is a written description of how to make and use the invention (see also: adequacy of disclosure). In U.S. law, claims are given the most reasonable reasonable interpretation consistent with the specifications during the prosecution of the application; However, in a lawsuit for patent infringement, the claim is interpreted in the Markman hearing.
Basic types and categories
There are two basic types of claims:
- the independent claims , stand-alone, and
- dependent claims , which depend on a single claim or multiple claims and generally declare a specific embodiment as a backward position.
The expression " in one embodiment ", " in the preferred embodiment ", " in a special embodiment ", " in favor of the embodiment "or the like often appears in the patent application description and is used to introduce certain implementations or methods for carrying out the invention. These embodiments may or may not be claimed by specificity. They may serve as some examples of the more common "genus" that are claimed. In some cases the examiner may argue that what the applicant proposes as a variation of a true invention is a separate discovery that needs to be examined individually.
An independent claim ("stand-alone") does not refer to the previous claim, whereas the dependent claim does not refer to the previous claim, assumes all the restriction of the claim and then adds a restriction (eg "Handbook of claim 2, where it depends.") by law, is narrower than the independent claims on which it rests. While this results in a much narrower coverage than that provided by the independent claims underlying the second claim, it is additional coverage, and there are many advantages to the patent applicant in submitting and obtaining a full range of claims depending:
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- Clarification/expansion of independent claims: Independent claims are usually written in broad terms, to avoid allowing competitors to avoid claims by altering some aspects of the basic design. But when broad words are used, it may raise questions about the scope of the term itself. If the dependent claim is specifically drawn to a narrower interpretation, then, at least in the US, the doctrine of claims differentiation states that the independent claim must be distinct from, and therefore broader than, the dependent claim. The doctrine states that "it is inappropriate for the court to read out independent claims as a restriction explicitly stipulated in other claims." This means that if an independent claim reads a chair with a number of legs, and dependent claims depend on an independent mention of a seat on four legs, the independent claim is not limited to what is read out in the dependent claim. The hanging claim protects the seat by four legs, and the independent claim protects the seat by four legs as well as the seat has two, three, five or more legs. Similarly, it may not be clear whether the "base" includes a "set of legs." The dependent claims, including the phrase, "in which the base consists of a set of legs," if permitted by the patent examiner, explain that the word "base" in an independent claim does not necessarily include the foot. In practice, dependent claims are often used to locate in the preferred embodiment of the invention of the present invention (for example, the actual product design that the inventor intended to use.) Independent claims broadly account for the present invention; the dependent claim # 1 describes the present invention in a narrower aspect more specifically describing preferred embodiments; dependent claim # 2 is narrower; etc.
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- Possible invalidity of independent claims: It is impossible to know, when initiating an application process and even at the time of issuance of a patent, if a patent claim is valid. This is because any publication dated prior to the priority date of the application and published anywhere in any language may void the claim (excluding publications by inventors issued during grace period in certain countries such as the US, Canada, and Japan). In addition, even apps that have not been published at the time of archiving, but have priority dates before the priority date of the app, may also invalidate the claim. Since it is not possible to obtain absolute and complete knowledge of every publication on earth, not to mention unpublished patent applications, there is always some degree of uncertainty. If an independent claim is determined to be invalid, however, the dependent claims may persist, and may still be large enough to deter competitors from a valuable commercial area.
According to the European Patent Convention, when claims are in a particular category (see below), e.g. process claims, depending on claims from different categories, e.g. product claims, it is not considered a dependent claim but an independent claim. Under U.S. law, this is still regarded as a dependent claim, regardless of class change.
The claim submission rule also allows "multiple dependent claims" referring to more than one other claim, for example: "3. The claim method 1 or 2, hereinafter consists..." The rule for this is quite specific: the specific claim must be referenced ("one method of other claims "not true); claims should be referenced in alternatives ("claim methods 1 and 2" are incorrect); etc. While it is still acceptable, this claim style is rarely used in the US because it is calculated for the submission fee according to the number of claims it references. Thus, if the claim is subject to three previous claims, it is calculated for cost purposes as three dependent claims. Given the "excessive claim" charges currently imposed by the USPTO, these tactics can quickly become costly. Some claims are dependent, however, very commonly used in other jurisdictions, including Europe.
Claims can also be classified in categories, ie in terms of what they claim . Claims can refer to
- physical entity, ie product (or material) or device (or device, system, article,...). These claims are then called respectively " product claims " or " app claims "; or
- an activity, ie process (or method) or use. The claim is then called each of the " process claims " (or method claims) or " use a claim ".
Special claim type
In addition to the basic claim types above, there are also many different types of special claims used in different situations. Sometimes a particular form of claim is required by law if a patent has to be granted for a particular invention, such as for the second medical use of a known substance in which a "Swiss-type" claim may be required. Another reason to use a particular claim may be to catch a particular offender class.
See also
- Catnik Ltd. Components v. Hill & amp; Smith Ltd. (1982)
- Claim chart
- Search and permissions opinions
- Cloem, the company that makes variants of computer-generated patent demands
- Disclaimer
- Equal doctrine
- Probatio diabolica , related to product-by-process claims
References
Further reading
- Construction of a product-by-process claim , the 11th European Patent Symposium, Copenhagen, Official Journal of EPO 2003, Special Edition, No. 2, page 20 -75 (pdf)
External links
- European Patent Convention
- Article 69 The EPC defines the level of protection
- EPC Protocol on Interpretation of Article 69 EPC
- Article 84 The EPC defines the claim role
- Rule 43 EPC (formerly Rule 29 EPC 1973) states the legal requirements regarding the claim form and content
- US patent law (Title 35 of the US Code)
- 35 USC Ã,§ 101 patented subject
- 35 USC Ã,§ 112 specifications and claims
- Study of patent claims
- When small is beautiful: measuring the evolution and consequences of voluminosity of patent applications in EPO This paper addresses the issue of measuring the volume of patent applications (number of claims and pages) and highlighting patterns in its evolution.
Source of the article : Wikipedia
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