Things To Consider While Writing Patent Claims
Patent Applications are long detailed documents consisting of different parts. A patent is divided into a specification, drawings, and patent claims. The combination of the various components in your patent application protects your invention. The claims are at the core of a patent application. It defines the limits of exactly what a patent does and does not cover. In addition, it lists the exclusive right granted to the patent applicant.
A patent claim outlines the features of your invention that are central to building or using your invention. It determines the scope or extent of the protection conferred by a patent. A statement of technical facts expressed in legal terms establishes the boundaries of the patent and concisely articulates the scope of the invention. The ‘scope’ essentially refers to the patent owner’s right to exclude anything or anyone falling within the confines of the claims. If a patent does not adhere to the patent litigation limits in patent litigation, it makes them liable for patent infringement damages.
A patent claim consists of three parts, i.e., the Preamble, transitional phrase, and the body of the claim. While writing patent claims, inventors need to observe and closely follow specific vital parameters. In addition, to draft and file a patent application on their own, without outsourcing it to an attorney, the inventors need to educate themselves about the process of writing effective claims and adhere to the format rules required by the Patent Office. Here is a guide to writing patent claims that will enable you to write claims with adequate disclosure, to disclose a claimed invention in sufficient detail.
The Preamble is the introductory phrase or prior art of the patent claim. It puts forward the general technical environment of the invention. It identifies the category of the invention and determines if the claim is an apparatus claim or a method claim. The Preamble does not assign any legally limiting constraint on the invention, and the limits are generally defined in the body of the claim. For example, a claim to an improved refrigerator might have the preamble “A refrigerator . . .”
The transitional phrase is the linking word that joins the Preamble with the body of the claim. The most commonly used transitions are: “comprising” or “which comprises,” “consisting of,” and “consisting essentially of.” Comprising is an open-ended phrase, and it enables the claim to define what elements it includes without excluding others. It gives the patent the broadest protection under the patent and allows you to expand the scope of the claim by having other elements or limitations. A closing phrase like ‘consisting of’ limits the claim’s coverage to include nothing more than the recited elements. ‘Consisting Essentially Of’ is a partly open and partly closed phrase.
Body Of The Claim
The main body is the inventive part of the claim and follows the transitional phrase. The inventor claims the invention in this section. The body recites various elements and limitations of the claim. It should focus on the point of novelty. The body of the patent claim should elaborate on the relationship between the different elements.
Types Of Claims
There are many types of claims used in the patent specification. It can be categorized based on Drafting, Inventions, Field, and Structure.
Based on Drafting
Based on Invention
· Process or Method
Based on Field
· Jepson Claim
· Markush Claim
· Swiss Claim
Based on Structure
· Pure structure
· Structure plus function
· Means plus function
· Structure is function
· Pure function
· Step plus function
Conciseness And Clarity
A patent claim is a single long sentence in which commas and semicolons separate the different sections. The patent claim should be worded, precise, and without unnecessary repetition. It should define the scope of legal protection and form a protective boundary around the invention. It should not sound vague, ambiguous, hypothetical, or speculative.
Determine The Scope And Elements
Before you start drafting your claim, you need to identify your invention’s essential features/ elements that you want to claim rights. You can initiate the process by writing a broad claim before you begin to narrow it down. The first claim is an Independent Claim, and the following claim is the dependent claim. You need to link these claims to form a single inventive concept. It should be somewhat based on the matter disclosed in the specification.
Align With The Standard Patent Laws
Patent law protects the inventors’ exclusive rights to the use or sale of the concerned inventions. While drafting patent claims, you need to ensure that it aligns with the common patent laws, such as USPTO, EPO, IPO, and WIPO, based on whichever regulatory protocols you want to follow. The patent specification needs to include all the crucial sections specified by the patent law. Strong patent claims will adequately support patent prosecution in the Patent Office and patent litigation in the courts.
Claims are the essence of your patent application. Therefore, you need to draft the patent claim meticulously to get the desired patent protection and protect your invention against any possible infringement.