Community hub
Recent from talks
Knowledge base stats:
Talk channels stats:
Members stats:
Patent claim
In a patent or patent application, the claims define in technical terms the extent, i.e. the scope, of the protection conferred by a patent, or the protection sought in a patent application. The claims particularly point out the subject matter which the inventor(s) regard as their invention. In other words, the purpose of the claims is to define which subject matter is protected by the patent (or sought to be protected by the patent application). This is termed as the "notice function" of a patent claim—to warn others of what they must not do if they are to avoid infringement liability. The claims are of paramount importance in both prosecution and litigation.
For instance, a claim could read:
In most jurisdictions, a patent is a right to exclude others from making, using, importing, selling or offering for sale the subject matter defined by the claims when the claim is for a thing (apparatus, composition of matter, system, etc.). If a claim is for a method, the right to exclude would be to exclude any single party from carrying out all the steps of the claim. In order to exclude someone from using a patented invention, the patent owner, or patentee, needs to demonstrate in a court proceeding that what the other person is using falls within the scope of a claim of the patent; therefore, it is more valuable to obtain claims that include the minimal set of limitations that differentiate an invention over what came before (i.e., the so-called prior art). But the fewer the limitations in a claim, the more likely it is that the claim will cover, or "read on", what came before and be rejected during examination or found to be invalid at a later time for obviousness or lack of novelty.
Patents have not always contained claims. In many European countries, patents did not contain claims until the 1970s. Before that time, it was often difficult to decide whether a product infringed a patent, since the sole basis to know the extent of protection was the description, in view of the prior art.
Interestingly, American inventors started using claims in their patent applications decades before the authorities (either judicial or legislative) started to require claims in patents. The first person who used in a US patent application the term "claim" in its current meaning is believed to be Isaiah Jennings in 1807. Claims were recommended in published patents in the Third Patent Act (1836) and finally became mandatory in the Fourth Patent Act (1870).
However, even among patent legal systems in which the claims are used as the reference to decide the scope of protection conferred by a patent, the way the claims are used may vary substantially. Traditionally, two types of claiming systems exist:
No patent system today is a purely either central or peripheral, but the system used in Germany and most of the other countries of continental Europe is considered more central than the system currently used in the United Kingdom, the United States, and especially Japan, which are more peripheral. In recent years,[vague] Japan's system has become more peripheral, while the system used in the United States was becoming more central because of the increasing resort in US patent litigation to the doctrine of equivalents to expand claim scope unpredictably, until the US Supreme Court reversed that trend in the Warner-Jenkinson case in 1997.
In most modern patent laws, patent applications must have at least one claim, which are critical defining elements of the patent and the primary subject of examination. In some patent laws however, a date of filing may be obtained for an application which does not contain any claim.
Hub AI
Patent claim AI simulator
(@Patent claim_simulator)
Patent claim
In a patent or patent application, the claims define in technical terms the extent, i.e. the scope, of the protection conferred by a patent, or the protection sought in a patent application. The claims particularly point out the subject matter which the inventor(s) regard as their invention. In other words, the purpose of the claims is to define which subject matter is protected by the patent (or sought to be protected by the patent application). This is termed as the "notice function" of a patent claim—to warn others of what they must not do if they are to avoid infringement liability. The claims are of paramount importance in both prosecution and litigation.
For instance, a claim could read:
In most jurisdictions, a patent is a right to exclude others from making, using, importing, selling or offering for sale the subject matter defined by the claims when the claim is for a thing (apparatus, composition of matter, system, etc.). If a claim is for a method, the right to exclude would be to exclude any single party from carrying out all the steps of the claim. In order to exclude someone from using a patented invention, the patent owner, or patentee, needs to demonstrate in a court proceeding that what the other person is using falls within the scope of a claim of the patent; therefore, it is more valuable to obtain claims that include the minimal set of limitations that differentiate an invention over what came before (i.e., the so-called prior art). But the fewer the limitations in a claim, the more likely it is that the claim will cover, or "read on", what came before and be rejected during examination or found to be invalid at a later time for obviousness or lack of novelty.
Patents have not always contained claims. In many European countries, patents did not contain claims until the 1970s. Before that time, it was often difficult to decide whether a product infringed a patent, since the sole basis to know the extent of protection was the description, in view of the prior art.
Interestingly, American inventors started using claims in their patent applications decades before the authorities (either judicial or legislative) started to require claims in patents. The first person who used in a US patent application the term "claim" in its current meaning is believed to be Isaiah Jennings in 1807. Claims were recommended in published patents in the Third Patent Act (1836) and finally became mandatory in the Fourth Patent Act (1870).
However, even among patent legal systems in which the claims are used as the reference to decide the scope of protection conferred by a patent, the way the claims are used may vary substantially. Traditionally, two types of claiming systems exist:
No patent system today is a purely either central or peripheral, but the system used in Germany and most of the other countries of continental Europe is considered more central than the system currently used in the United Kingdom, the United States, and especially Japan, which are more peripheral. In recent years,[vague] Japan's system has become more peripheral, while the system used in the United States was becoming more central because of the increasing resort in US patent litigation to the doctrine of equivalents to expand claim scope unpredictably, until the US Supreme Court reversed that trend in the Warner-Jenkinson case in 1997.
In most modern patent laws, patent applications must have at least one claim, which are critical defining elements of the patent and the primary subject of examination. In some patent laws however, a date of filing may be obtained for an application which does not contain any claim.