How To Read A Patent

Brown & Michaels
How do I read a patent? - the Front Page

Let's look at the front page of a typical patent. We'll discuss each section on the front page, from left to right and top to bottom, identifying the sections by the number code in parenthesis before the section. These numbers, called "INID Codes", are used universally on all printed patents around the world, so that you can identify the information elements on a patent even if you do not speak the language. A complete list of these codes is available on this site. If any of the terms used in this explanation are unfamiliar, you will probably find them defined in our Patent Glossary. Sample patent front page, from Patent Number 6,763,791
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(12) Type of Document: for an issued patent, this will just read "United States Patent". Other possibilities are: "Patent Application Publication" - a published patent application. For more information on patent application publication, see our Patents FAQ page "Reissued Patent" - this patent is based on another patent which was previously issued. See section (22) for the number and issue date of that patent. The Reissue Patent has been examined and issued again with modifications to the claims. "Defensive Publication" or "Statutory Invention Registration" - a publication made for the defensive purpose of preventing others from getting patents. Defensive Publications and SIRs do not give any rights to exclude others from making, using or selling, as would a patent. SIRs were introduced in 1985, replacing the earlier Defensive Publication program. The last name of the inventor will normally be printed under the type of document. If there is more than one inventor, the last name of the first inventor "et. al" will appear.
(10) Number: A utility patent will have a number here with no letter prefix (other than the "US" which denotes a US publication). Other patent office documents have letter prefixes before the number which indicate the kind of document: AI - "Additional Improvement" patents, issued only between 1838 and 1861 - somewhat similar to today's "Continuation in Part" applications B - Re-examination Certificate, issued after a patent has issued and has been examined again by request of the patentee. The numeric portion of the number is the number of the patent to which the reexamination certificate refers. (For design, plant, reissue patents, the Reexamination Certificate will include the normal designation letter - BD for design, BP for plant, etc.) "B" was also used as a prefix for documents published in the Trial Voluntary Protest Program (TVPP) in the mid-1970's. Patent applications were partially published (abstract, drawing, cited references). First "B" publication was in June, 1975, and 665 "B" documents were eventually published. D or Des.- Design Patent - 14-year term, covers ornamental appearance of a useful object. H - Statutory Invention Registration (SIR) NP - non-patent literature. PP or Plt. - Plant Patent - covers certain plants. RE - Reissue patent (RD for reissued design patent, RP for reissued plant patent) T - Defensive Publication (issued 11/5/68 through 5/5/87) X - Before 1836, patents were not numbered - they were simply described in terms of their inventor and date ("Brown's 1814 patent"). 9,957 patents issued between 1790 and 1836 were retroactively assigned "X" series numbers in the order in which they were issued. A fire at the Patent Office in 1836 destroyed most records of the "X" patents. Only 2,845 "X" series patents were reconstructed in the 1840's and are available today. Reissued "X" patents have an "RX" prefix. Documents also have a letter or letter/number after the number. These appear on the face of the patent only after January 2, 2001, but the codes may be used on all patents in some databases. To make things more complicated, the number after the letter is sometimes omitted. A1 - Published Patent Application - (if application is published more than once, A2 for second, etc.) A1 - pre-2001 patents A9 - Corrected published patent application B1 - Utility Patent, not previously published B2 - Utility Patent, previously published as an application C1 - Reexamination Certificate (if more than one certificate, then C2, C3...) (B1 ... is used for pre-2001 Reexamination Certificates) E1 - Reissue Patent F1 - Reexamination Certificate of a Reissued Patent (F2, F3... for additional certificates) (before 2001, this was C1, C2...) H - Statutory Issue Registration. - see above I1 - "X" patent (see above) I2 - Reissued "X" patents I3 - Additional Improvement patent (see above) I4 - Defensive Publication ("T" series) (see above) I5 - Trial Voluntary Protest Program (TVPP) documents (see above) P1- Plant Patent (before 2001) P1 - Published Plant Patent application (after 1/2/2001 - additional publications are P4, P5...) P2 - Issued Plant Patent without pre-grant publication (after 1/2/2001) P3 - Issued Plant Patent which was previously published (after 1/2/2001)
P3 - Issued Plant Patent which was previously published (after 1/2/2001) S - Design Patent X6 - Patent - Post Issue document (Dedication, Disclaimer, Cert. of Correction, etc.) X7 - Patent Assignment (45) Date of Patent: the date the patent was issued by the USPTO. Interesting trivia point - this is always a Tuesday. The patent is enforceable after this date, and in some cases the patent term is measured from this date (see "How to determine if a patent is still in force") (54) Title: This is the full title of the patent. In past years, it was the practice to give very vague and general titles to patents ("Tool"), but more recently titles tend to be fairly specific. (75) Inventors : All of the inventors will be listed on the patent, usually with their city of residence. Sometimes the inventor's full address will be listed. (73) Assignee: If the patent is owned by a company (or an individual other than the inventor(s)), it will be listed here. Note that this information comes from the cover sheet which was filed when the issue fee was paid, and may not be correct. Sometimes the attorney or inventor forgets to list an assignment, or chooses not to. Assignments which are recorded after the patent issues are never printed on the patent. To find out the latest assignment status of a patent, see the Patent Assignments database at the USPTO website. (*) Term extension notice: Sometimes the term of the patent is extended due to delays in the USPTO processing beyond certain limits. If the term is extended, it will be noted here, as a certain number of days of extension. (see "How to determine if a patent is still in force") In the example above, the term was not extended. (21) Appl. No.: The serial number of the application on which this patent was based. The serial number is always six digits, assigned sequentially as applications are received by the USPTO, prefixed by a two digit series number - in this case 10/198,476. When the number reaches 999,999, they start a new series. The series numbers are as follows: 02 Application filed earlier than Jan. 1, 1948 03 Application filed Jan.1, 1948 - Dec. 31, 1959 04 Application filed Jan. 1, 1960 - Dec. 31, 1969 05 Application filed Jan. 1, 1970 - Dec. 31, 1978 06 Application filed Jan. 1, 1979 - Dec. 31, 1986 07 Application filed Jan. 1, 1987 - Dec. 31, 1992 08 Utility or Plant Application filed Jan. 1, 1993 - Dec. 31, 1997 09 Utility or Plant Application filed Jan. 1, 1998 - Dec. 4, 2001 10 Utility or Plant Application filed Dec. 4, 2001 - November 29, 2004, plus some "national stage" PCT applications filed after 2004 (the USPTO appears to have reserved some blocks of "10" series serial numbers for PCT applications, and continued to assign these numbers until they ran out). 11 Utility or Plant Application filed November 29, 2004-December 2007 12 Utility or Plant Application filed in 2008 or later (current series) 29 Design applications filed beginning in January 1993 (current series) 60 Provisional Application filed before 2008 61 Provisional Application filed in 2008 or later (current series) 90 Patent re-examination under Ex Parte Reexamination procedure 95 Patent re-examination under Inter Partes Reexamination procedure (22) Filing date: This is the date that this application was filed. Note that this is the actual filing date, not necessarily the "first US filing date" used for determining patent term. (see "How to determine if a
not necessarily the "first US filing date" used for determining patent term. (see "How to determine if a patent is still in force") (65) Prior Publication Data: If this patent was published while it was a pending application, the publication number and date will be listed here. In this example, the application was published on February 20, 2003 as Published Application Number "US 2003/033,999 A1". For more information on patent application publication, see our Patents FAQ page (60) Related US Application Data: and (30) Foreign Priority Data: If this application is related to any other applications or patents, they will be listed here. In this example, patent 6,763,791 was based on Provisional Application number 60/312,140 filed on August 14, 2001. The patent might be related to other non-provisional applications, for example if it is a Continuation-inPart of an earlier application or a US equivalent of an application first filed in Japan. If so, the patent term would be measured from the filing date of the earliest non-provisional US application listed here. (see "How to determine if a patent is still in force") If any of the related applications have issued as US patents, that will be indicated in this section as well. (51) International Patent Classification and (52) US Patent Classification All patents are classified by subject matter for ease of searching. The classifications in which a patent is indexed are listed in these sections. A given patent may be classified in any number of different locations, depending on the features of the invention. Most patent offices around the world use the International Patent Classification system, which is based on the function or operation of the invention. The classification system is defined in a hierarchical outline. In this case, the patent is classified in subclass F01L 1/34, defined as follows: F: MECHANICAL ENGINEERING; LIGHTING; HEATING; WEAPONS; BLASTING F01: Machines or Engines F01L: Cyclically Operating Valves for Machines or Engines 1/34: characterized by the provision of means for changing the timing of the valves without changing the duration of opening The USPTO uses its own US Patent Classification System, in which all inventions are first put in a class having a three-digit number, then in a numbered subclass under the class. The subclasses are arranged in a hierarchical form, but not necessarily in numerical order. The US classification system is more based on structure than function. In this case, the patent was classified primarily in subclass 123/90.17, defined as follows: 123 INTERNAL-COMBUSTION ENGINES 90.1 Poppet Valve Operating Mechanism 90.15 . With means for varying timing 90.17 .. Camshaft or cam characteristics Knowing the US classification(s) for a patent is important in searching, because the USPTO database only indexes patents issued before 1976 by number and classification. Therefore, if you need to retrieve pre-1976 patents in your search you have to search by class/subclass number, rather than by keywords.
(58) Field of Search: These are the US classes/subclasses the Examiner searched when he examined this patent. If you are doing a patent search and find a patent which seems similar to your idea, this can give you a hint of other places you should be looking. (56) References Cited: This is a list of the prior art that the Examiner found in his search, or which were listed by the patentee on an "Information Disclosure Statement" (IDS) filed with the application. Patents flagged with an asterisk are those that the Examiner felt were particularly relevant to the patentability of this patent. Both US and foreign patents may be listed, as well as non-patent literature the Examiner might feel was relevant. Primary Examiner, Assistant Examiner: These are the USPTO Examiners who did the examination of the application when it was filed in the USPTO. (74) Attorney, Agent or Firm: When the Issue Fee is paid for the patent, one or more patent attorneys, patent agents or law firms may be listed on the cover sheet. In this case, the firm who filed and prosecuted the application was Brown & Michaels PC (surprised?) and Greg Dziegielewski was the Patent Counsel for the Assignee, BorgWarner Inc, at the time the patent issued. (57) Abstract: A brief summary of the invention, with the emphasis on "brief" (less than 150 words). Note that the abstract is usually a much broader description of the invention than the claims, which actually define the limits of the patent's coverage. Number of claims and drawing sheets: Simply an enumeration of the number of claims and sheets of drawing in the patent, so that you can determine if the copy you have is complete. Representative drawing: The Examiner picks one of the drawing figures to put on page 1 of the patent. Usually, this is figure 1, but if the Examiner feels another figure shows the invention better, he will pick that one. Ahead to the Drawings -> Back to "How to read a patent" main page Home || Intellectual Property || Patents || Trademarks || Copyrights
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400 M & T Bank Building 118 North Tioga Street - The Commons Ithaca, NY 14850 Phone: (607) 256-2000 - Fax: (607) 273-2609 e-mail: bpm@bpmlegal.com Copyright 2004-2008 Brown & Michaels, PC
Brown & Michaels

How do I read a patent? - the Drawings
"The applicant shall furnish a drawing where necessary for the understanding of the subject matter to be patented." - 35 USC 113 Most US patents will have drawings. It is unusual, but not unheard of, for a patent to omit drawings - for example, a chemical compound or steel composition, or a pure method of doing something, might not need drawings. The standards for patent drawings can be found in the Manual of Patent Examining Procedure (MPEP), section 608.02 There are usually a number of drawings, numbered from "fig(ure) 1" up. Sometimes a figure will be broken up into several sub-figures, or there may be a number of figures showing the same thing at different stages. In these cases, it is traditional to number these sub-figures or alternate figures with appended letters: fig. 1A, fig. 1B, etc. Sometimes it is necessary to show how things were done before the invention was made. Such figures will be labeled as "Prior Art", and they do not form part of the patented invention. In a drawing figure, each part of the invention which needs to be discussed will be "called out" with a reference number, usually connected to the part with a line. If a reference number is underlined (as in 3, in the cut-away view below), it refers to the part on which the number is superimposed. If the line from the reference number appears to point at nothing in particular (i.e. 10 in the 3D view or 7 in the cut-away view), it usually refers to the device as a whole. Traditionally, if the same part appears in more than one figure, the same number is used to refer to the part on all views. In the past, if there were more than one instance of a part, or the part is shown in more than one place, the different occurrences of the part would be distinguished with "primes" or apostrophes - 71, 71', 71" and so on. This is seen as fairly old-fashioned today, and it's more common now to use 71a, 71b, 71c, etc. Older patents may also use letters in place of reference numbers, but this, too, is considered old-fashioned. There are several kinds of drawing: Perspective or 3D View
This kind of view shows a device as it might look if seen in three dimensions. Traditionally, the 3D view is from above and right or left of center. Section or Cut-away View
The section or cut-away or cut-through shows the invention as if it had been sliced through with a knife. Usually, there will be a perspective or flat view of the device, and the place where the section is cut will be indicated by a dashed line with arrows showing the direction of the view. The Exploded View
In this drawing, the coupling is shown with all of the parts pulled apart along the axis of the coupling. The "snaky" dashed line indicates that, to conserve space, the two halves were placed side by side, but that spring 7 and coupler 53 are really next to each other in line. Block Diagram
Block diagrams are used to show the various parts of a system in very general terms, and indicate the relationship of the parts. If the part is something which would be easily recognized, for example box 45 "PC", there will usually not be any more detail than that. If more detail about a part is required, then there will be another figure giving the detail. Flowchart
Method patents will often have flowcharts which give the steps of the method. In case you were wondering, the USPTO has its Guide for Preparation of Patent Drawings available on the web in ZIP format (expands into an MSWord document). You can download it here - warning, it's 6MB in size! <- Back to the Front Page - Ahead to the Specification -> Back to "How to read a patent" main page Home || Intellectual Property || Patents || Trademarks || Copyrights

400 M & T Bank Building 118 North Tioga Street - The Commons Ithaca, NY 14850 Phone: (607) 256-2000 - Fax: (607) 273-2609 e-mail: bpm@bpmlegal.com Copyright 2004 Brown & Michaels, PC
Brown & Michaels

How do I read a patent - the Specification
The "specification" of a patent is all of the written part of the patent, except for the first-page information and the claims. After each section on this page, we will give a reference to the Code of Federal Regulations (CFR) or Manual of Patent Examining Procedure (MPEP) which discusses the section. The specification has the following parts: (A) Title of the Invention: (See 37 CFR 1.72(a).) This is pretty obvious - the title will be at the beginning of the specification. Many years ago, patents had very short, very generic titles - "Tool", "Device". Today, titles are longer and more specific, especially in patent based on applications from some other countries. Japan, in particular, tends toward very long titles. (B) Cross-Reference to Related Applications : (See 37 CFR 1.78 and MPEP Section 200.) If this patent is related to other patents, or based on earlier-filed US applications, it will be stated right after the title. This would include patents based on provisional applications, or which are divisions, continuations or continuations-in-part of other applications. If the earlier applications became patents before this patent issued, the patent numbers will usually be noted here. Sometimes foreign priority applications are listed here, but it is not required. This information may duplicate information on the first page. (C) Statement Regarding Federally Sponsored Research or Development: (See MPEP Section 310). If the invention was developed under a contract from a US Government agency, the Government retains some rights in the patent. The contract will define these rights, but at a minimum they will have a paid-up license to practice the invention. (D) Reference to a "Microfiche Appendix": (See 37 CFR 1.96(c) and MPEP Section 608.05). Sometimes a very lengthy listing of a DNA sequence or computer program is required as part of the patent disclosure. This may be supplied on microfiche or, more commonly today, on a CD-ROM. If such an appendix was provided, there will be a note under this heading. Copies of these appendices are available from the USPTO, for a price. (E) Background of the Invention: The specification should set forth the Background of the Invention in two parts: (1) Field of the Invention: This is a very broad description of the area of technology
into which the patent falls. Traditionally, the field of the invention is stated in two sentences. The first is sort of a paraphrasing of the class definition, the second is similar to a subclass definition. For example, "The invention pertains to hand tools. More specifically, the invention pertains to adjustable wrenches." (2) Description of the Related Art: This section discusses the "prior art" - that is, what was known before the invention. This will often include references to specific patents or other documents, and might include a discussion of shortcomings of prior patents. In years past, the background or summary sections of patents often had long listings of the problems the invention was to solve, often stated in terms of "objects of the invention" ("A problem of prior art wrenches is that they slip off bolts. It is an object of the invention to provide a wrench which does not slip off bolts."). This is much less common today, in large part because patent examiners in other countries (the EPO, particularly) object to lists of "objects", and because these lists had been used to limit or invalidate patents, where a defendant could prove the invention did not, in fact, meet its "object". (F) Brief Summary of the Invention: A brief summary or general statement of the invention as set forth in 37 CFR 1.73. The summary is supposed to be directed toward the invention, rather than the disclosure as a whole. The summary may point out the advantages of the invention or how it solves problems previously existent in the art (and preferably indicated in the Background of the Invention). In chemical cases the summary should point out in general terms the utility of the invention. If possible, the nature and gist of the invention or the inventive concept should be set forth. In practice, this section is often a paraphrase of the Abstract (or vice-versa). The Summary most often reflects the broadest claim, as it stood when the application was filed. Because in US practice the specification is rarely amended when the claims are narrowed, the summary of the invention is often broader than the claims which finally issue after examination. (G) Brief Description of the Drawing: A reference to and brief description of each Figure in the drawing(s) as set forth in 37 CFR 1.74. This really means brief. One sentence, only, in the form: "Fig. 1 shows a side view of the frammis of the invention", or "Fig. 6 shows a sectional view of the frammis, along the lines 6-6 in fig. 5." Definition of terms you'll see in this section (see also our page on drawings): "perspective" - the view is simulated 3-D "sectional" - the figure is of a cut through the invention, like slicing an apple through the core. If the section is taken from another drawing, the other drawing should have a "section line" indicating where the cut is made, and which direction it is "looking". "cut-away" - similar to a section, but only part of the invention is revealed - like
cutting away part of the apple peel to show the seeds in one spot. "detail" - a part of another figure, enlarged. The other figure should have the area of detail called out, usually by dotted or dashed lines. "exploded" - the parts of the invention are shown physically separated, with lines indicating where they go. "plan view" - same as top view elevation view" - same as front view. (H) Detailed Description of the Invention: A description of the preferred embodiment(s) of the invention as required in 37 CFR 1.71. The description should be as short and specific as is necessary to adequately and accurately describe the invention. This section of the specification is used to describe the various embodiments of the invention in great detail. Each of the figures will be explained, and, at least in theory, every reference number in the drawing will be called out and named in the detailed description. The detailed description will often include a method of making an invention, or a method of using it. Sometimes there will be one or more "examples", especially in method patents or in inventions which have chemical or biotech elements, where it is necessary to demonstrate the utility of the invention. "Embodiments" are versions or variations on the invention. The various embodiments are supposed to all be the same invention - the rule is "one invention to a patent, and one patent to an invention". If the Examiner felt that two embodiments were, in fact, two independently patentable inventions, they might have been split out into two applications and might now be two patents (the second one is called a "divisional" of the first). Because US practice seldom amends the specification to correspond to the claims, you will usually find that the detailed description in the parent patent and any divisional are identical, with only the claims differing between the two. That is, if the original application described two different inventions, the Examiner would have required the applicant to pick one to proceed with, and any claims directed to the other invention would be withdrawn. The applicant could file a divisional application with only the claims which were withdrawn from the first application, and the result would be two identical patent specifications, describing both inventions, with the claims to the first invention in the parent patent, and the claims to the second invention in the divisional patent. <- Back to the Drawings - Ahead to the Claims -> Back to "How to read a patent" main page Home || Intellectual Property || Patents || Trademarks || Copyrights

Brown & Michaels

How do I read a patent? - the Claims
In a printed patent, the claims usually come last. In the USPTO database, they are first, immediately after the bibliographic information and abstract. In either case, the claims are usually preceded by the phrase "What is claimed is..." or simply "I claim...". The claims are the heart of a patent, in that they define the limits of exactly what the patent does, and does not, cover. That is, the patentee has the right to exclude others from making, using or selling, only those things which are described by the claims. Reading and understanding the claims of a patent is the key to determining if a given product or process infringes the patent. This is not an easy thing to do, for the following reasons: claims are written in a very legalistic and stilted way; the claims don't necessarily mean exactly what they say - they must be properly interpreted and explained by the patent specification and drawings; the terms used in the claims might possibly be limited by things that the patentee said to the US Patent and Trademark Office while the application was pending (the prosecution history); in some cases the terms in the claims might mean more than they appear to, under the "Doctrine of Equivalents". This page will attempt to introduce the subject of reading claims, but if your concern about the claims of a patent is more than idle curiosity, it should be understood that claim interpretation is an arcane art best left to patent attorneys, after analysis of the prosecution history, review of recent court cases, and a search of the prior art. In other words, "Professional Driver on Closed Course - Kids, don't try this at home." Claims 101 - The Basics Special note on Design Patents and Plant Patents: Since they cover only the appearance of an object, Design Patents have only one claim, which reads, "A design as shown in the figures." Plant patent claims are similar: "A new and distinct Chrysanthemum plant named Balada, as described and illustrated." (from PP8009). The discussion on the rest of this page will deal only with utility patent claims. A claim is a sentence. As such, it starts with a capital letter and ends with a period. In many cases, claims are typographically broken out in outline form, to make reading the claim easier - although it is not uncommon to find a claim which is presented as a runon sentence half a page long.
Claims are numbered sequentially, with claim 1 usually being the broadest claim in the patent (but not always), and the sub-parts of a claim are often identified by an outline letter or number. . Claims are of two basic types: Independent and Dependent. Independent Claims An independent claim stands alone, for example: 1. A motor vehicle for transporting people and objects, having a chassis and a body mounted on the chassis, the motor vehicle comprising: a) a plurality of wheels under the body, supporting the chassis; b) a transmission mounted on the chassis and coupled to at least one of the plurality of wheels; c) a motor mounted on the chassis, having a fluid input and an output coupled to the transmission; and d) a fluid supply mounted within the body, coupled to the fluid input of the motor by a portoflan armature coupled to the fluid supply, a gronk tube coupled to the fluid input of the motor; and a variable orifice between the portoflan armature and the gronk tube. This claim has a preamble ("A motor vehicle..."), the connecting word (or "transitional phrase") "comprising", and a list of four elements - wheels, a transmission, a motor and a fluid supply. The preamble usually sets out the name of the product being claimed, and perhaps a use for the product. It will also list anything which is not part of the invention, but which is needed to define or supply support for the elements of the claim (for example, the body and chassis of the motor vehicle are included so that we can later on say the wheels, motor and transmission are mounted to it). Normally, the preamble should not be used to limit the claim, unless it is necessary to make sense of the claim. Sometimes there will be a series of independent claims which differ only by the preamble - for example, if the novelty in the example above was in the fluid supply coupling, the patent might have one claim starting "A motor vehicle...", as above, and then a number of successively narrower claims starting "A power source for a motor vehicle...", "A fluid supply for a motor in a motor vehicle..." and "A coupling for a fluid supply for a motor in a motor vehicle...". In each case, more of the items listed in the elements a-d would be moved into the preamble, so that the last of these claims would read:
1. A coupling for a fluid supply for a motor in a motor vehicle for transporting people and objects, having a chassis and a body mounted on the chassis, a plurality of wheels under the body, supporting the chassis, a transmission mounted on the chassis and coupled to at least one of the plurality of wheels, a motor mounted on the chassis, having a fluid input and an output coupled to the transmission, and a fluid supply mounted within the body and coupled to the fluid input of the motor by a coupling, the coupling comprising: a portoflan armature coupled to the fluid supply; a gronk tube coupled to the fluid input of the motor; and a variable orifice between the portoflan armature and the gronk tube. The reason for having a series of claims like this is that if the patent owner ever sues for infringement, he wants to be able to use the biggest base for calculating royalties, and the hope is that since motor vehicles cost more than fluid couplings, that the damages will be larger for infringing a claim directed to "a motor vehicle" than one directed to "a coupling". That said, it seems unlikely that a court would award royalties based on the price of a car if someone merely produces an infringing fluid coupling. At least, if the court does use the cost of the car as a base, it seems likely that they will then use a lower percentage rate than if they based the damages on just the coupling, so that, in the end, the result will be more or less the same. Still, there's little harm in the practice, other than the cost of some extra claims. By use of the connecting or transition word "comprising" ("open" language), the claim says, "the device has at least these things, but might have other things also." Other connecting words have other meanings - for example, if what was claimed was a motor vehicle "consisting of" the list ("closed" transition language), then the motor vehicle would have that list and nothing else. A car having the listed elements and seats would not infringe. Notice that each element of the claim is tied into something which went before - the wheels are under the body, supporting the chassis, and so on. Claim elements are supposed to be related, so that each element builds on the preceding elements. Any element which is described as "the ..." should have been introduced previously as "a ..." - this is called "antecedent basis". Thus, the first time we see the transmission it is called "a transmission" (claim 1(b)). Then, in claim 1(c), we can say that the motor is coupled to "the transmission". Claims to methods would be written in the same way as the apparatus claim above, except that each of the elements would be a step, usually starting with a verb:
10. A method of driving a motor vehicle comprising the steps of: a) placing the vehicle in a center of a lane in a road; b) propelling the vehicle along the lane; c) observing the vehicle position relative to the center of the lane; d) if the vehicle strays from the center of the lane, turning a steering wheel to steer the vehicle back to the center of the lane; and e) repeating the method from step (b). Dependent Claims A dependent claim, in contrast, only has meaning when combined with a preceding claim. Here are a few dependent claims which depend upon claim 1, above: 2. The motor vehicle of claim 1, in which the fluid supply is a tank of compressed gas, and the motor is a variable-displacement fluid motor. 3. The motor vehicle of claim 2, in which the gas is air. 4. The motor vehicle of claim 1, further comprising a steering wheel coupled to at least one of the wheels, and at least one seat mounted to the chassis at a location such that a driver seated in the seat can manipulate the steering wheel. Thus, claims 2 and 4 depend on claim 1, and claim 3 depends on claim 2, which in turn depends on claim 1. What this means is that each of these dependent claims cannot stand on its own (claim 3 does not cover "air", as such) but rather must be read with one or more of the earlier claims to make sense. Put another way, each dependent claim has the same coverage as an independent claim which is made up of the claim plus all of the claims upon which it depends, back to an independent claim. So, claim 3 really means, 3. A motor vehicle for transporting people and objects, having a chassis and a body mounted on the chassis, the motor vehicle comprising: a) a plurality of wheels under the body, supporting the chassis; b) a transmission mounted on the chassis and coupled to at least one of the plurality of wheels; c) a variable-displacement fluid motor mounted on the
chassis, having a fluid input and an output coupled to the transmission; and d) a tank of compressed air mounted within the body, coupled to the fluid input of the motor. Normal type elements are from Claim 1 Bold elements are from claim 2 Italicized word is from claim 3 Note that the "gas" from claim 2, defining the "fluid supply" of claim 1, is replaced by "air" from claim 3 Each element in a dependent claim must have "antecedent basis", as discussed above for the elements of an independent claim. That is, we couldn't have "the gas" in claim 3, unless there was "a gas" defined in claim 1 or 2. Claims 2 and 3 narrow claim 1 by limiting what kind of "fluid supply" and "motor" is covered - so, while claim 1 would cover any fluid (say, gasoline) supplying any kind of motor (a gas turbine), claim 3 only covers compressed air supplying a variabledisplacement fluid motor. Claim 4 narrows claim 1 by adding another two elements the steering wheel and seat, so that in order to infringe claim 4 you must have at least six elements, rather than the four needed to infringe claim 1. Each dependent claim must be narrower than the claim upon which it depends. Thus, it would not be proper claim format to have a dependent claim in this example which says, 5. The motor vehicle of claim 1, in which there is no motor. This is improper form because claim 1 requires a motor, and claim 5 says there is no motor. Thus claim 5 would be broader than its parent claim. Having a dependent claim like this would allow a product which does not infringe claim 1, because it has no motor, to infringe claim 5. The claims rules introduced in 2007 (effective November 1, 2007) say that a dependent claim must claim an invention which is in the same class (method, apparatus, etc.) as the claim upon which it depends, or it is considered an independent claim. Thus, a claim which reads "A device manufactured by the method of claim 1...", or "A method of chopping wood comprising using the device of claim 1..." would be considered independent, even though it refers back to an earlier claim. Many foreign countries have a special form of dependent claim, called "multiple dependent claims". A claim of this form might be: 6. A motor vehicle according to any of claims 1-5, in which the body is painted red.
This kind of claim is allowed in the USPTO, but discouraged - there is a large additional fee if there are any multiple dependent claims at all in the application, and each multiple dependent claim counts as more than one claim for the purpose of determining the basic filing fee (in this example, claim 6 would count as five claims). Also, although other countries allow multiple dependent claims to depend on other multiple dependent claims, this form is forbidden in the US. We do not recommend the use of multiple dependent claims. Special Claim forms Jeppson Claims: Jeppson claims are a special type of claim which are most often used when the invention is an improvement on an existing product. Here is claim 1, written as a single Jeppson-style claim: 7. In a motor vehicle for transporting people and objects of the type having a chassis and a body mounted on the chassis, a plurality of wheels under the body, supporting the chassis, a transmission mounted on the chassis and coupled to at least one of the plurality of wheels, a motor mounted on the chassis having a fluid input and an output coupled to the transmission, and fluid supply mounted within the body, coupled to the fluid input in which the improvement comprises: the fluid supply being coupled to the fluid input of the motor by a portoflan armature coupled to the fluid supply, a gronk tube coupled to the fluid input of the motor; and a variable orifice between the portoflan armature and the gronk tube.. In the "ordinary" claim form of claim 1, above, the body of the claim lists elements which are both old and new. In this form, everything before the "in which the improvement comprises" is admitted to be prior art for the purposes of this claim, and everything after the phrase are considered to be the novel elements of the invention. Although this kind of claim is not often used in US practice, it can be very effective in separating the old and new parts of an invention. This style of claim is the preferred form in European practice, where they are called "two-part format" claims, and the transitional phrase is "characterised by..." or "characterised in that..." Markush groups: Markush groups are a way of writing a claim to cover an element which is selected from a list of elements. For example, 8. The motor vehicle of claim 1, in which the the fluid is a gas selected from a group consisting of air, nitrogen, propane, butane, and fluorine.
In terms of claim coverage, this would be the same as five dependent claims, each claiming the fluid is one of the gasses, but by using this form we only have one claim. This can save money on the excess claim filing fees if there are more than 20 claims. The risk of a Markush claim form is that if any one of the group is found to be old, the entire claim is invalid. If the claim were written as separate claims, the invalidity of one of the claims would not affect the others. Note that on August 10, 2007, the USPTO issued a "Notice of Proposed Rulemaking" which proposes changes to how claims presenting alternatives (which includes Markush groups) would be considered for examination and claim-counting purposes. If enacted, the rules would be changed to provide, among other things: 1.75(j) A claim that reads on multiple species by using alternative language must meet the following conditions: (1) The number and presentation of alternatives in the claim does not make the claim difficult to construe; (2) No alternative is defined as a set of further alternatives within the claim; and (3) No alternative is encompassed by any other alternative within a list of alternatives, unless there is no other practical way to define the invention. (4) Each alternative within a list of alternatives must be substitutable one for another. For more details, see the Federal Register notice (72 FR 44992).
Onward... Now that you know the basics of reading claims, we can go into a bit more detail. However, what you need (or want) to know will depend on why you need (or want) to know it. Therefore, we have provided three ways to proceed from here: 1. I have a patent application, and am reviewing the claims provided by my patent attorney - what should I look for? 2. I am writing my own patent application - what pitfalls should I avoid? 3. I am reviewing the claims in an issued patent to see if a product is infringing how do I do that? <- Back to the Specification Back to "How to read a patent" main page
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Reviewing Claims for your application
It is a very daunting task to review the claims in your own application which were written by a professional - presumably, you are confident that he knows his job well enough to avoid obvious mistakes. If you're not so confident, you might want to see our page "pitfalls in drafting your own claims" for a list of the top ten mistakes in claim drafting - and make sure your professional hasn't made any of them. Assuming that your attorney or agent hasn't made one of the basic errors in claim drafting, then everything should be fine, right? Wrong. You still need to review the claims very carefully. He or she might know patent law, but no one knows your invention as well as you do. Start with the independent claims, and ask yourself these questions: 1. Does the claim really claim what I thought I invented? About our Firm Contact Us This is pretty basic - is the claim really focused on what you think your invention is? If you think you invented a new hammer, does the claim start "An improved nail"? It is common, in fact desirable, to have a number of independent claims describing the invention in varying breadth. For example, an improved fuel injection system for an automobile engine might be claimed as a fuel injection system, an internal combustion engine having the fuel injection system, a motor vehicle having an engine with the fuel injection system, a fuel injection system made according to a specific method, and a method of injecting fuel into an internal combustion engine. The inclusion of claims based on the larger assembly (the engine or vehicle, in this example) is done in an attempt to increase the possible royalty base for an infringing device - you'd rather get 2% of the sales of an entire car than 2% of the sales of a fuel injector. However, this technique should not be used to excess, and make sure that the first claim is focused on exactly what the invention is - the fuel injector, not the car. If there are "product" claims and "product by process" (that is, claims to the product made according to a specific method), make sure that the process really would produce the product. If you invented an improved process of making an existing product, then you should not have any claims to the product itself. A claim to the method of making the product would be proper. A product-by-process claim would not be proper, unless there was some new feature in the product which is a result of the process (in other words, both the product and the process must be new for a product-by-process claim).
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You cannot patent a known device, even if you are using it in a new way. A new use for an old device can only be claimed as a method. If you know that the basic device is old, and your invention is in the way it is used, be sure that your application only claims the use (as a method) and not the old device. 2. Is every element recited in this claim really necessary? In many cases, the first draft of a claim may include elements which appeared in the description of the preferred embodiment, but it is not really necessary to recite these elements in at least the broadest independent claim. For example, if an element is simply part of the environment (say, a housing or frame), or is so much a part of the prior art that any person having skill in the art would realize that it is part of the device (for example, everyone knows that an internal combustion engine requires a fuel source), then it does not belong in the independent claim, unless it is needed for antecedent basis later on. If an element is necessary for antecedent basis, but is not really part of the invention, as such, it can be moved to someplace where it is not positively claimed. Sometimes, if they are important enough to mention, but not absolutely essential, such elements belong in dependent claims. Or, if they are essential to give the invention structure, but are not part of the novelty, they can be put in the claim preamble (before the "comprising" connecting word). Maybe the claim would be better written in Jeppson form? In method claims, are there any steps which are merely there to prepare for the actual inventive method? For example, if the method starts with a step of cleaning a workpiece, is that really needed? What if you started with a workpiece which was clean enough, or if the method would work (perhaps not quite so well) if the workpiece were not clean? Move the step to a dependent claim. You should question the inclusion of any preliminary steps which just recite "providing (an element)", which is used or processed in a later step in the method. These steps can be omitted, since it will be assumed that the element has been "provided" when you start to work on it, and they are really meaningless. If you include such steps (and they are very common), you will give a potential infringer the opportunity to avoid infringement by saying that he did not "provide" the element, whatever that means. 3. Is there any element of my invention which is essential, but which is missing from the claim? This does not mean that there is some part of the device as a whole which might be needed to make the device work - focus on the novel invention itself. Is there a part of the invention which is necessary to the operation which does not appear in the claim?
This is especially easy to miss when your invention is an improvement to part of an existing product. As an example, every car needs a motor, tires and a fuel source, but these elements do not need to be included in an independent claim if the invention is an improved turn signal. On the other hand, you would probably want to include an electrical power source, lights, a turn signal switch and a way of making the light flash. 4. Are any of the words in the claim too limiting? Is there a more generic word which could be used? Must the word be used at all? Watch out for words which are unnecessarily limiting - if two parts need to be connected by a threaded connector, the claim should use that term and not "hex bolt". Claims shouldn't say things are "epoxied together" if they just need to be "adhesively fastened". In fact, if all that matters is that the parts are connected, the claim should just say so ("an A connected to a B") and not positively claim the connecting structure at all. Your patent attorney may not be aware that a technical term is limiting - look at every word and see if you know a more generic term. Do you always use the term "polyethylene", when "plastic" or "polymer" will do? Or must the element really be polyethylene and not polyvinyl chloride? Did your attorney use any word in a claim which is a trademark? For example, rather than claim "Velcro", which is a trademark, the claim should say "hook and loop fastener material" (at most - "separable fastener" would be better, unless it had to be hook and loop type). 5. Are there any alternatives to the elements in the claim which are not covered by the wording used? Perhaps your preferred embodiment was written in a specific way because of manufacturing concerns - maybe you decided to drill a hole in a certain way because it was easier with your equipment, or you used a specific substance because it was less expensive. If there are alternate ways of accomplishing the same result, which are equally novel, make sure that the broadest claim, at least, covers those alternatives. Review every adjective - must a body be "cylindrical", must a substance be "rigid", must an attachment be "pivoting" when "flexibly attached" would do? 6. Must the parts of the device be arranged in the specific way described? Question "over", "under", "beside", "inside", "outside" if merely "adjacent" would do. Must a part really be "on the front end", or just "on an end"? The same is true for method claims - must the steps in the method be performed in exactly the order given? Question any use of "first", "next", or "followed by..." or other wording implying an order, when no order is actually required.
7. Are the dependent claims correct? Look at the dependent claims, and ask the same questions - but remember that dependent claims must be read in combination with all of the claims upon which they depend, and they are intended to be narrower than all of the claims upon which they depend. See the basic "How to read claims" page, if you're not clear on how to read dependent claims. Is each dependent claim dependent on the correct "parent"? It is a common mistake to lose track of what claim depends on which, when claims have been repeatedly added and deleted in drafting. If a dependent claim does not further define or restrict a term in the parent, then perhaps it should be dependent upon a claim further up the chain. Are the terms used in the dependent claims really narrower than the equivalent terms in the parent claims? For example, if you said an element was "polyethylene" in a parent claim, you could not have a dependent claim which says that the element is "a polymer" - that term is broader than "polyethylene". Is the dependent claim really necessary? If all it adds is an element which is purely conventional, maybe it can be omitted entirely. 8. Are the claims properly supported by rest of the application? Make sure that all of the elements of the claims are adequately described in the specification and shown in the drawing. More than that - make sure that every word used in the claim is defined, or at least described, somewhere in the specification. Make sure terminology is consistent. If a screw is "a screw" in the detailed description, it should not be a "threaded fastener" in the claims (better yet, have the specification changed to "threaded fastener"). If you are using a word in a way which is not entirely standard, be absolutely sure that your specification has a clear definition of the term ("As used herein, 'cylindrical' means any structure which has a cross-section which is rounded, including circles, ovals and rectangles with rounded corners."). 9. Is anything missing? Do a final double-check for consistency and completeness. Is there anything novel which is described in the specification, but not claimed in the claims? Is there anything in the drawings which is not described in the detailed description or claims? Did you forget to mention something which is necessary or desirable? Remember that
you have a duty to disclose the "best mode" of the invention. Is there any prior art reference which you know about which an Examiner would consider relevant to the patentability of your invention? Put another way, what is the closest prior art you know of to your invention? Be sure you have discussed that art with your attorney, so he/she can decide whether or not to discuss it in the background, and, at least, so that it can be included in an Information Disclosure Statement to be filed with the application. Do it now! Before you file is the time to add things to the patent application - once it is filed, you cannot add "new matter". <- Back to How to Read Claims Back to "How to read a patent" main page Home || Intellectual Property || Patents || Trademarks || Copyrights

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Brown & Michaels

Pitfalls and Traps in Claim Drafting or, "So you want to write your own patent?"
HOME OVERVIEW PATENTS TRADEMARKS COPYRIGHTS Staff Directory About our Firm Contact Us First, we have to give the usual disclaimers - imagine a banner is appearing across your monitor, saying " Professional Patent Attorney on Closed Course - Kids, don't try this at home." In other words, writing patent claims is really a job for a professional patent attorney or agent. We strongly urge you not to write final claims, but rather to prepare the best outline of your invention you can, and let a professional write the actual claims. If you must write claims, then at least have a professional (preferably one at Brown & Michaels) review them before you file. The money you spend then will save you thousands later on, and might save you from having a patent declared invalid later on (or discovering that what you thought was a very broad patent was, in fact, very narrow). That said, let's proceed with the "the Top Ten Beginner's Mistakes in Patent Drafting". 10. Basic claim structure mistakes - violations of claim grammar Of course, claims should be proofread for all of the grammatical rules you learned in elementary school - correct spelling, agreement of subject and verb, singulars and plurals, etc. This pitfall refers to the special rules of claim grammar - the legal and customary requirements of claim structure itself. A claim is a sentence. It must start with a capital letter, and end with a period and those must be the only capital letters or periods in the claim. Right : 1. A widget comprising a power supply, a headlamp and a flasher connecting the power supply and the headlamp. Wrong: 1. A widget. The widget has a Power Supply and a Headlamp. A Flasher connects the power supply and headlamp. This is three sentences, not one, and there are extraneous capital letters. It is best to break the claim up into outline subsections, if at all possible. The subsections may be identified with outline letters or numbers, and usually end with semicolons. The next to last element usually has "and" at the end. Use indenting to show the levels of the outline sections. Right:
1. A widget comprising: a) a power supply; b) a headlamp; and c) a flasher connecting the power supply and the headlamp. Wrong: (periods after sections, also periods after outline letters, misuse of "and") 1. A widget comprising: a. a power supply. b. and a headlamp. c. and a flasher connecting the power supply and the headlamp.
9. Choice of connecting words: "Comprising" vs. "consisting of" or "having" "Connecting words" or "transition words" are the words which go between an element in a claim and the list of things which make up the element. Each has its own special meaning, and you can severely limit your claim by the choice of the wrong word. "comprising" or "comprises" ("open" language) - the device has at least the list of things which follow "comprising", but might have other things also. This is the preferred transitional word for most situations. "including", "containing" or "characterized by" are equivalent to "comprising", but are not recommended in US patent practice. 1. An improved windshield washer fluid comprising water, soap and acetic acid. This claim would cover washer fluid with these ingredients, and anything else you cared to mix with it - coloring, alcohol to keep it from freezing, perfume to make it smell, whatever. "consisting of" ("closed" transition language) - the device would have the following list of elements and nothing else. In a chemical claim, the claimed compound has only the listed components, and no others. An accused product, method, or chemical which has additional components will not infringe. 1. An improved windshield washer fluid consisting of water, soap and acetic acid.
This claim would cover washer fluid with only these ingredients - add alcohol, and it does not infringe. "consisting essentially of" - the device has the following list, and possibly some unimportant other things which do not materially effect the basic and novel characteristics of the invention. This is normally only used in chemical claims, where what you mean is that there might be traces of other chemicals, but mostly the substance is made up of the recited list. Unless you really mean this limitation, it is best not to use this transitional phrase. 1. An improved windshield washer fluid consisting essentially of water, soap and acetic acid. The scope of this claim is not really clear. It would cover washer fluid with only these ingredients, plus unimportant additives - the perfume, perhaps. Add alcohol, and it probably does not infringe, since that might change the basic characteristics of the fluid. "having", "composed of", - it is best not to use these transitional words or phrases, as their meaning is not clear. The USPTO rules say they "must be interpreted in light of the specification". The Examiner (and a court) may interpret them as open or closed - you won't know until it is too late. 1. An improved windshield washer fluid having water, soap and acetic acid. It is impossible to say what this claim covers, without analyzing the entire patent application - did the specification indicate any other ingredients were possible or desirable? Were these the only ingredients ever mentioned? 8. Inconsistent terminology We all learned in Junior High not to use the same word over and over again when we're writing. When you are writing claims forget this rule! Always use the same word to refer to the same thing. Use of alternative words or synonyms might please a literary critic, but a patent examiner or court will take it as implying that you meant different things by the different words. In patent work a foolish consistency is not the hobgoblin of small minds (with apologies to Emerson). Right: 1. A chainsaw comprising a bar, a motor driving a sprocket having a plurality of teeth, and a chain, the bar being mounted to the motor, the chain being wrapped around the bar and having teeth meshing with the teeth of the sprocket, such that the motor drives the chain around the bar.
Wrong: 1. A chainsaw comprising a bar, a motor driving a sprocket having a plurality of teeth, and a chain, the chain support being mounted to the engine, the cutter being wrapped around the chain guide and having tangs meshing with the protrusions of the gear, such that the power source drives the knives around the slots.
7. Claiming a result This is a difficult concept for most inventors to grasp, but it is very important. You may have had the result in mind when you made the invention, but it's the invention on which you get the patent, not the result. That is to say, you cannot claim a result. You can only claim an apparatus or method which accomplishes the result. For example: You have had a problem removing the lug nuts from automobile wheels. You discover that if you smear a mixture of axle grease and graphite on the threads before you put the nuts on, they're easier to take off the next time. You cannot claim: 1. An anti-seize mixture which allows lug nuts to be removed without seizing. or 1. A method of removing lug nuts more easily than before. You can claim: 1. An anti-seize mixture comprising axle grease and graphite. or 1. A method of preventing nuts from seizing to the threads of wheel lugs comprising the steps of removing the nuts, smearing a mixture of axle grease and graphite to the threads, and threading the nuts onto the threads. If you need to mention the result to make the novelty or application clearer, you do it by defining the invention first, perhaps defining the application in the claim preamble, then saying "such that..." or "wherein..." and giving the result, defined in terms of the invention. 1. An anti-seize mixture for application to the threads of wheel lugs, comprising axle grease and graphite, such that when the mixture is
comprising axle grease and graphite, such that when the mixture is applied to the threads, nuts are prevented from seizing to the threads. Use this approach sparingly, however. If the mixture were novel, in and of itself, it is much better simply to claim the mixture and omit the "such that" clause entirely.
6. Too little detail in claims Don't leave anything out of a claim which is necessary to distinguish the claim from the prior art. Basically, you should ask yourself, "have I included in the broadest claim every part of my invention which makes my invention new, as compared with what went before"? This is a bit of a tightrope walk, because you also do not want to include anything in the broadest claim which is not necessary (see the next section). 5. Too much detail in claims, claiming elements too specifically, overuse of adjectives Look at every single word in the claim and ask, "is this really necessary to describe my invention in its broadest sense?" If the answer is, "no", drop it. If the answer is "no, but the invention works better with this element or limitation", put it in a dependent claim. Remember that under the "all elements rule", in order to infringe a patent a product has to include every element (item or limitation) in at least one claim. Therefore, every element you put in your broadest claim is one more opportunity for an infringer to escape liability by leaving it out. a. Too Much Detail - claiming outside of the invention Be particularly sensitive to elements which are included because the device needs them, rather than the invention. For example, suppose your invention is an improved spring for an automobile suspension, in which the novelty is that the spring is made of reticulated turbonium (an imaginary substance having superior qualities). Certainly the car needs tires, and the spring needs to attach to a frame, but you would not want to positively claim the tires or the frame in the broadest claim. Wrong: 1. An automotive suspension, comprising two axles, two wheels on each axle, a tire on each wheel, a frame, and four springs made of reticulated turbonium, each spring being mounted to the frame and to an axle. Right:
1. A spring for an automobile suspension, made of reticulated turbonium. Note: sometimes you may want to include claims to a larger assembly including the invention, so as to possibly have a larger base on which to calculate royalties. The first claim above might be worth including for this purpose, but not as the broadest claim. Omit standard environmental parts - cases, covers, frames, batteries or power supplies, on/off switches, indicator lights or readouts (unless essential to the novelty), feet or mounting brackets, wheels, etc. b. Too Much Detail - claiming inside the invention Avoid positively claiming conventional elements which are part of the invention, where the "person having ordinary skill in the art" would be able to instinctively insert the element, even if it is unstated. For example, avoid claiming fasteners, hinges, latches, nuts, bolts, screws, glue, etc. Incorporate these minor elements, if you must, through the linking words between the necessary claim elements. Wrong: 1. A medicine cabinet, comprising: a box, a mirror, and two hinges connected to the mirror and the box. 2. A box having four sides and a bottom attached to the four sides with two-part epoxy glue. Right: 1. A medicine cabinet comprising a box, and a mirror pivotally connected to the box. 2. A box having four sides attached to a bottom. c. Claiming elements too specifically, overuse of adjectives Resist the temptation to overdescribe, unless the specificity is essential to the patentability of the invention. Wrong: 1. A widget comprising a cylindrical shaft gronkheiser and two polypropylene portoflan armatures connected to the gronkheiser by number four Fahnstock clips. Right:
1. A widget comprising a plurality of portoflan armatures connected to a gronkheiser. Note: Only indicate how many of an element you need if you really need that number, and no other. Otherwise, use "at least one..." (that is, one or more) or "a plurality of..." (which means two or more). Of course, any detail you removed as a result of this analysis might be a good candidate for claiming in a dependent claim. 2. The widget of claim 1 in which the portoflan armature is made of polypropylene. 3. The widget of claim 1 in which the gronkheiser is a cylindrical shaft gronkheiser. 4. The widget of claim 1, further comprising a plurality of Fahnstock clips connecting the gronkheiser to the portoflan armatures. Be suspicious of any adjective in a claim - must a shaft be "cylindrical", or would a square or flat one work? Sure, the hinge you're using is rectangular, but there are lots of very nice looking bat-wing hinges which would work as well. Is there a generic term for the word - "plastic" instead of "polyethelene", "metal" in place of "aluminum", "fastener" in place of "screw", etc.? If the metal must be steel, must it be "stainless steel", or would just "steel" work? Can you claim the element in terms of its properties rather than its composition? For example, "resilient material" in place of "rubber", or "non-conductive spacer" instead of "nylon rod", and so on. Try not to use specific numbers in claims, if at all possible, or claim a range or minimum/maximum instead of a number. For example, if all you need is a saline solution, say so, not "2% saline". If your preferred embodiment uses 10% sodium, but the invention will work with 2%-20%, use the range in the broad claim and the specific number in a dependent claim (but be sure there is wording in the specification to back up any numbers or ranges you use). If a given chemical is present in concentrations of "0-10%", this really means you don't need it at all (because a concentration of 0% means "none"), so move it to a dependent claim. Avoid relative terms, unless absolutely necessary. Even if the Examiner will allow you to get away with them (many won't), they add an element of uncertainty to the claim. What is "large" to you might be "small" to someone else. How many is "many", how few is "few"? How close is "close"? Never use "larger", "smaller", "heavier", etc., unless you are specifically comparing two elements in the claim. That is, it's OK to claim "... a first flange, a second flange smaller than the first flange ...", but not "A camera having a lens with a filter ring, in
smaller than the first flange ...", but not "A camera having a lens with a filter ring, in which the filter ring is smaller." Unless your invention must always be built and used in a specific orientation, avoid absolute positions - "above", "below", "right", "left". One recent case turned on whether it really mattered if a claim element which was claimed as "below" another element really had to be below, or if it could be above it. Needless to say, it's hard to argue that "below" means "above", and the patentee lost. Generally, saying one element is "adjacent" to another will work in most cases. In fact, don't list position at all if you don't have to - just say how the elements relate, not how they're located. 4. Dependent claims which broaden or contradict independent claims The function of a dependent claim is to narrow the claim upon which it depends. Therefore, be sure that all dependent claims introduce additional restrictions or add additional elements or define terms in a narrowing way from their parent claims. Example: Assume the main claim is: 1. A widget comprising at least three gronkheisers, a portoflan armature having a length of 3-5 meters coupled to the three gronkheisers, and a nylon webbing surrounding the gronkheisers. The dependent claims are: 2. The widget of claim 1, in which there are two gronkheisers. Wrong the main claim says there have to be at least three gronkheisers, so two is broader. 3. The widget of claim 1, in which the nylon webbing is plastic. Wrong "plastic" is a generic term for the specific "nylon" - these two claims should be swapped, with "plastic" in claim 1, and "nylon" in claim 3 4. The widget of claim 1, in which there is no webbing. Wrong dependent claims must add elements. not remove them. This claim would be broader than claim 1, since it would define a widget with only four elements instead of five. 5.The widget of claim 1, in which the length of the portoflan armature is 9 meters. Wrong - claim 1 said the length is between three and five meters, and 9 meters is more than five, so no armature could fit into both this claim and its parent. 6. The widget of claim 1, in which there is a mounting bracket in place of the webbing. Wrong - you can't substitute elements this way. You should pick a generic term which encompasses both options, and make each a dependent claim, instead.
make each a dependent claim, instead. 7. The widget of claim 5, in which the mounting bracket is 1 meter in length. Wrong - there is no mounting bracket in claim 5, it's added by claim 6. This claim should be dependent on claim 6, or be changed to read "further comprising a mounting bracket 1 meter in length" so that it both adds and defines the bracket. 8. The widget of claim 1, further comprising a mounting bracket attached to the webbing. Right - this adds an element, so it is narrower than claim 1. 9. The widget of claim 1, in which the portoflan armature is made of ferrous metal. Right - this further narrows the construction of the armature. 10. The widget of claim 1, in which the length of the portoflan armature is between 3.5 and 4 meters. Right - this range narrows the range in the main claim. BUT - be sure that somewhere in the specification it says that 3.5-5 meters is preferred, or explains why this range has significance. 3. Not claiming the invention This should be fairly simple, but it is amazing how often claims miss the point entirely. Don't get so carried away by the art of writing claims that you lose sight of the goal describing your invention. Is the invention a method, but you've written apparatus-type claims, or vice versa? Have you spent so much time defining how each of the parts of the device interconnects, that you have forgotten to claim the reason for the interconnection? For example, your invention might be using a spool valve in a particular way to control an automatic transmission - say, when you push the spool valve all the way in, it shifts the transmission into Park. You might write a very involved claim, something like: 1. A control system for an automatic transmission, comprising: a spool valve having a spool and a sleeve, the spool having four lands ... (etc.) ... the sleeve having five ports, the first port located ... the spool having a first position, a second position ... a first passage connecting the first port of the sleeve to... (something in the transmission)
a second passage connecting the second port of the sleeve to ... (something else) ... and so on defining all the passages... That's all fine, but in the end, you might discover you had been so wrapped up in describing all the lands on the spool valve and the passages between them, that you forgot to see if all of this structure really accomplishes the invention. Is there anything in the claim which says that when the valve is moved to one end, the transmission shifts into Park? If not, you've missed the point. It would have been much better claiming: 1. A control system for an automatic transmission comprising a spool valve having a spool and a sleeve, the valve being coupled to a supply of fluid and at least a transmission park input which shifts the transmission into Park, wherein when the spool is moved to an end of travel in the sleeve, hydraulic fluid is routed to the park input, shifting the transmission into Park. 2. Claiming too broadly, so that claims read on known prior art You want your claims to be as broad as possible, but not too broad. You don't want the claim to be so broad that it applies to other devices or methods which are old (prior art). If your invention is an improved monkey wrench using a rack-and-pinion arrangement to adjust the jaws, be sure that is what the claim says. It might seem broader in the short run to claim "a rack and pinion", instead of "a monkey wrench comprising a movable jaw with a rack, and a rotatable pinion gear engaging the rack," but that would be counterproductive. Your invention really isn't a rack and pinion, as such. Rack and pinion gear sets have been known for many decades. By claiming the invention in that way, you have asked for broader claims than you are entitled to. The Examiner will almost certainly cite automotive steering against your invention, and he would be right. Claiming a wrench using the rack and pinion would have properly narrowed the field of search to tools, and the claim would have been allowable. In this example, you would be too broad if you left out the word "pinion" -"a monkey wrench comprising a movable jaw with a rack, and a rotatable gear engaging the rack". Monkey wrenches with worm gears were known before your invention, so you need the narrowing word "pinion" to make your wrench patentable. 1. Not seeing past the preferred embodiment
It is tempting to take your invention as it presently exists, and describe every element in extreme detail - as a proud inventor, you spent lots of time polishing your invention, and making sure it was just as good as it could be. It took you months or years of trial and error to figure out that the portoflan armature works best if it's made of polypropylene instead of bakelite (or the even more generic "plastic"), or that the cheapest fastener is a number four Fahnstock clip, or that two armatures are better than one or three, so you really want to say these things in the broadest claim. That invention is your baby, and it just couldn't be improved upon. Any variation would just not be worth considering... BUT... When you're writing your claims you have to see beyond the perfected prototype you have sitting in your garage, to make sure that the patent you will eventually get will not be easily evaded. For every element, you need to ask yourself, "How could this be changed, and it would still be my invention?" Think "changed" rather than "improved" - for an infringer may well choose to do something less well to avoid your patent claims. Push the limits - how big a change could you make to each element, before you would look at the result and say, "that is no longer my invention, I don't care if someone else makes that." For example, suppose you invented a new lathe with an improved jaw design. The best way to build your invention would have adjustable legs, so that you could easily level the lathe and set it at any height. What if your competitor built it with fixed-length legs? Sure, that wouldn't be as good - but would it still be your invention? Yes, it would - the legs don't really affect the novelty of the invention, and you can always put a book under the short leg. Therefore, your broadest claim shouldn't include the adjustable legs. Put them in dependent claims. Your prototype has a motor with a geared transmission to vary speed - could you do the same thing with a belt drive and selectable pulleys? With electronic speed control? Just claim a "variable speed motor drive", and put the variations in dependent claims. Your design was made for chair legs, so the jaws have a range of one to three inches - would the lathe work if it were scaled up for fenceposts or down for clockworks? Probably. Don't claim dimensions unless they're essential. For that matter, does the fact that you made the lathe for chair legs matter? Probably not. Don't claim "A lathe for turning chair legs..." when just "A lathe..." will do. There is a good reason this is the Number One Mistake - more than any other, this is why so many self-prepared patents are much narrower than they need to be. This is one of the best reasons for having a patent attorney review your claims at the very least - better yet, to have a patent attorney write them in the first place. Your attorney will not have the same attachment to your baby as you will, and he or she will be able to take a fresh look at the invention and say, "what if we did this...?"
And a few bonus points... Don't use Trademarks in claims Always use generic descriptions rather than trademarks in claims. A trademark is a manufacturer's indication that a particular product is his, not a description of the product. Therefore, you don't want to refer to an element in your claim by its trademark name because: 1. The composition of a product made under a given trademark may change over time - remember "New Coke"? Today's Kodachrome film bears little resemblance to the Kodachrome of the 1960's, and the same is true of many products, while the generic description would remain the same. If your claims depend upon a particular formulation of a product, you're better off specifying it by description, rather than run the risk of having your claim become inoperable by an unpredictable change by the trademark owner. Many Examiners object to the use of trademarks in claims for just this reason. 2. Your patent will live for twenty years from your filing date. During that time a company might go out of business, or change the name of the product, or the original manufacturer might abandon the mark and another pick it up for a completely different product. In such a case, your claim would become essentially meaningless - an infringer might not be able to figure out what "Xardoz" was fifteen years ago, or might be misled into believing it is something completely different because someone else is making something unrelated today. 3. Others may make the same product under different names - do you want to give your competitor an opening to argue he's not using Velcro, but Hammerloc or GripIt or the generic "hook-and-loop fastener material"? Sure, the argument could be made (and might win) that the terms are all equivalent products, but why offer the opportunity? Our website has more information on trademarks here. Keep claims directed to different invention types (method, apparatus) separate It is possible to write claims which are a mixture of method and apparatus: 10. A widget made by the method of claim 1. 11. A method of using the widget of claim 10, comprising the steps of... Many Examiners will not accept mixed apparatus and method claims, others will. It's best not to confuse things. Note: in the 2007 rules changes, which would have become effective November 1, 2007, the USPTO changed the rules to explicitly state that claims of this kind are to
be considered independent claims, rather than dependent claims. Thus, the inclusion of this kind of claim would have put you over the three independent claim limit (for the purposes of filing fees). These rules were rescinded on October 8, 2009. Nonetheless, clearly the USPTO does not like this sort of claim and intends to do something about them at some point. It's best to avoid them. Claim elements in a product or apparatus claim must be things. Claim elements in a method claim must be steps. Don't mix them up. This is best explained by bad examples. The following are wrong: 1. (mix of things and step) A widget comprising: a portoflan armature; (thing) a gronkheiser containing methylene blue;(thing) threading the portoflan armature and inserting it into the gronkheiser; (step) spreading the methylene blue through the portoflan armature. (step) 2. (apparatus claim described as method) A method of spreading methlyene blue comprising: a portoflan armature;(thing) a gronkheiser containing methylene blue; (thing) wherein the methylene blue is spread through the portoflan armature. (result of using the thing) These claims would be acceptable: 1. (apparatus claim) A widget comprising: a portoflan armature; a gronkheiser containing methylene blue, threaded to the portoflan armature; wherein the methylene blue passes through the portoflan armature for dispensing. 2. (method claim) A method of spreading methlyene blue comprising the steps of: threading a portoflan armature onto a gronkheiser;
threading a portoflan armature onto a gronkheiser; filling the gronkheiser with methylene blue; spreading the methylene blue through the portoflan armature. Use of "means plus function..." language The patent law (section 112, sixth paragraph) specifically permits you to describe an element in a claim not in terms of its structure, but in terms of what it does: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. This is called "means plus function" (or "step plus function", in method claims). Once upon a time, we patent attorneys liked "means plus function" language in claims because it seemed to allow us to claim all possible variations on an element without having to come up with some generic word or think of every variation and name it separately. For example, you could claim "a power supply", but would that cover a battery? If you called it "means for supplying electrical power", then that seemed to cover both (and a solar panel, steam-powered generator, and so on). Then, after everyone spent many years of writing everything in "means plus function" form, a court changed the rules - it said that a "means plus function" element covers only those means which were described or shown in the patent. In most cases, you wouldn't have bothered to explicitly show the power supply, battery, solar panel, etc., so that very broad "means plus function" now meant only those means you specifically called out - maybe the power supply and battery, but not the solar cell or steam generator. "Means plus function" went from broad to narrow, overnight. Now, it is best to avoid "means plus function" language if at all possible. If you do use it, be sure to list every possible variation on the "means" in the specification, and maybe include one or more dependent claims listing them, too. Words to avoid: "predetermined" - this implies that the quantity is determined before you start the method. What if it can be calculated "on the fly?" What if it can be just picked randomly? If you must use an adjective at all, use "selected" or "calculated". "exactly" - how exact is "exact"? Don't give an infringer room to wiggle if his element is very slightly different. "adapted to" - this is used in claims, but often it is objected to by examiners, for good reason. Just how is the element "adapted" to perform the function? Maybe it would be better to spell that out instead, or leave out the function from the claim. Phrases such as "can be used
or leave out the function from the claim. Phrases such as "can be used for", or "could be" or "might be" or "is made to" have the same problem. "eliminate" and similar absolute statements - for example, "the widget being mounted so as to eliminate vibration." What if an infringer doesn't quite "eliminate" the vibration, but only limits it severely? At what point is it "eliminated" so as to infringe the claim? Say "limit" or "reduce" instead. Avoid Alternatives Many Examiners object to claims written in the alternative 12. The widget of claim 1, further comprising a portoflan armature made of metal or plastic. These claims are best written as a number of different dependent claims, or as a Markush Group. If you haven't defined the element yet, it should be in its own claim, with the alternatives in claims dependent upon it. 12. The widget of claim 1, further comprising a portoflan armature. 13. The widget of claim 12, in which the portoflan armature is metal. 14. The widget of claim 12, in which the portoflan armature is plastic. <- Back to How to read claims Back to "How to read a patent" main page Home || Intellectual Property || Patents || Trademarks || Copyrights

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Reading Claims for Infringement
First, we should say that infringement analysis is a matter for professional guidance for two reasons: HOME OVERVIEW PATENTS TRADEMARKS COPYRIGHTS Staff Directory About our Firm Contact Us 1. Interpreting claims is a highly technical process, and should be done by a professional patent attorney based on the latest rules as laid out by the courts; and 2. If you have a formal written opinion in hand from a patent attorney which says you are not infringing a patent, you may be able to avoid added damages for "willful infringement" if you are sued. Therefore, the following is presented as a basic explanation of the process that an attorney would go through in analyzing a product for infringement of a patent, but should not be taken as legal advice of any kind. If you are reading this because you think you might be infringing a patent (or you think someone else might be infringing your patent) we strongly urge you to contact a patent attorney (preferably one at Brown & Michaels) immediately. First Step - Look at the claims. What do they mean, as properly interpreted ("construed")? You will want to start by reading the claims - concentrate on the independent claims, since if you don't infringe the independent claims, you won't be infringing the dependent claims (which are narrower, by definition). The claim may not be formatted in a way which makes this analysis easy, so the first step is to pick it apart. List every element in the claims separately. Be sure you can identify each and every part and restriction which is described in the claim. The importance of this step cannot be overstated - every word counts. Suppose the claim says, 1. A widget comprising: a solid cylindrical metal body having three circular ports arranged in a straight line along a length of the body; ... This means that an infringing product must have: (1) a body which is
(2) solid, (3) cylindrical, and (4) metal, and the body must have (5) exactly three ports which are (6) circular and (7) arranged in a straight line (8) along the length of the body. That's eight elements or restrictions out of only one brief clause, and every one is important. "Close enough" doesn't count - if your body is plastic, not metal, or it's hollow, not solid, or if you have two ports or five ports, or they're staggered instead of in a straight line, you don't infringe. (But see "doctrine of equivalents", below) Look at the words which the patentee chose to describe these elements and restrictions - are any of them unclear, or capable of more than one meaning? You need to define every term before you go on to the next step. Plain Meaning vs. "A patentee is his own lexicographer": The terms in the claim should usually be given their ordinary meaning, but the courts have held that "a patentee is his own lexicographer". This means that, if the patentee chooses, he can invent a term or give a term a new or more restrictive meaning than would normally apply. If he chooses to do so, however, he needs to be clear in the specification about what the term means - for example: "As used herein, the word 'fastener' means any threaded fastener which requires more than one turn to lock" - normally, a "fastener" would mean anything which fastens, but the patentee is using the word in a more restrictive (narrower) sense. A bayonet fastener is not a "fastener" as the term is used in the patent. "While this description has described the body as 'closed', it will be understood that there may be vents or apertures in the top, or the top may be wholly or partially omitted, so long as the body is capable of retaining liquid when held upright." - Here, the patentee is broadening the term "closed" from its usual meaning of "sealed". A "closed body" in this patent includes a water glass or a can with the lid removed. "The remainder of the powder is essentially made up of iron, meaning that there are only traces of other materials less than 1% by weight and not effecting the hardness of the result." - here, the patentee has defined the term "made essentially of iron powder". A powder made of the listed materials and iron with 5% impurities would be excluded by this definition. "The port is sealed with a 'boiling valve', a term I have created to mean any closure which permits passage of water vapor over 100 degrees C, but blocks liquid water and cooler vapor." - here the patentee has invented a term, "boiling valve" and is defining it. Of course, if the invented term
represents not just a new word, but a new device, there had better be a description of the device in the patent which is good enough that a person having ordinary skill in the art could build it, or the claim using the term will be invalid as "not enabling". While the patentee may be his own lexicographer, he must be clear about what he's defining and may not invent a definition which contradicts the ordinary meaning or broadens it to the point of meaninglessness. For example, he cannot say "for the purposes of this patent, the term 'upward' includes 'downward", 'side to side' or any other possible movement", or "when this description says that the powder 'does not include water', this includes the situation where the powder does include water." Claim Differentiation: This principle says that there should be some difference between claims. For example, look at the following claims: 1. A widget comprising a gronkheiser and a portoflan armature fastened to the gronkheiser by a movable connection. 2. The widget of claim 1, in which the movable connection is a hinge. Since claim 2 says that the connection is a hinge, the principle of claim differentiation would indicate that therefore the term "movable connection" in claim 1 must include connections which are not hinges. Otherwise, there would be no difference between claim 1 and claim 2. This would be important if your product used a movable connection, but not a hinge. Extrinsic Evidence: There is some conflict between cases as to just how much weight is to be given to "extrinsic evidence" - that is, evidence as to the meaning of a term which comes from some source other than the patent itself. Sometimes courts will use dictionaries to define a term in a claim, sometimes they will refuse to do so. The most common extrinsic evidence is a dictionary definition. Of course, there are lots of dictionaries, and lots of definitions. It is best not to rely on an obscure dictionary definition to decide that your product does not infringe, if there is any argument that the context of the patent itself or industry usage would construe a term such that your product does infringe.
Next, look at the Product... The "All Elements Rule" - a very simple rule, which says that in order to infringe, a product must contain every single element in at least one claim of the patent. Look at each element in the claim, as properly construed in step one, and see if the product has it. If you can find even one element of the claim which is missing from the product, it does not infringe. Be very clear about this - the product must have every element in the claim, not that the claim must have every element in the product. A product may (and usually does)
the claim must have every element in the product. A product may (and usually does) have other elements, but it still infringes if it has every one from the claim. Be s ure to compare your product to the claims! Infringement is defined by the claims in the patent. The drawings and specification are often broader than the claims - the examination process often leads to narrowing of claims, and it is not unusual to have drawings which show an entire product where only a small part is claimed. It is quite possible that the application as filed showed something very similar to your product, but in the course of getting the patent, the patentee had to change the claims to give up coverage of your product. Often, a patentee will view his patent through the lens of what he is currently selling. His product is not necessarily what is defined by the claims in the patent. It is not at all unusual for a product to evolve beyond, and away from, the claims of an issued patent. Do not fall into the trap of comparing your product to his product, or allow the patentee to switch the subject to how much his product looks like yours. But wait - is the patent narrower than it seems? Prior Art: Take a very careful look at the patents and other art which was cited during the examination of the patent. By definition, the patent cannot cover anything which is taught by this "prior art" - and "taught" means shown in the drawings or described in the specification. The claims in prior art patents do not matter for this purpose. If your product is very close (or identical) to what is shown in one of the cited patents, it may be outside the scope of the claims even if a literal reading of the claims would indicate infringement. File Wrapper Estoppel/Disclaimer: Did the patentee say anything during the examination process which would affect the interpretation of the claims? You will need to get a copy of the "file wrapper" (prosecution history) for the patent. For very new patents, this may be available on the "Image File Wrapper" on the USPTO PAIR system. For an older patent you would have to buy a copy of the file history from the USPTO or a service such as MicroPatent. Look at everything the patentee filed - especially the comments in every response to every office action, and in any Information Disclosure Statements (IDS). Also look at what the Examiner had to say in the office actions. Often, an applicant (or his attorney) may make statements in discussing the prior art citations which will change the meaning of terms in the claims, or which would act to exclude certain things from the claims either literally or under the Doctrine of Equivalents (see below). For example, suppose that the invention was a lug nut for automobile wheels which has large "wings" to allow it to be easily spun off by hand. The claim reads:
1. An improved lug nut for automobile wheels, comprising a body having a threaded interior for mating with a threaded stud on an automobile wheel, and a plurality of wings on an outside surface of the body for manual manipulation. Your product is a "knock-off" hub nut, which spins onto a special wide stud mounted at the center axis of specially-adapted wheels. Superficially, this claim might appear to describe your product. You look at the file history, and discover that the Examiner cited a 1962 MG catalog showing knock-off hubs. In order to overcome the reference, the applicant said "while the MG catalog shows a knock-off hub with wings, such hubs interacted with a shaft on the center of the wheel. In contrast, the lug nut of applicant's invention is threaded and sized to work with conventional studs on conventional automobile wheels, without the need for special hubs or fittings." By making that statement to get the patent, the patentee has removed your product from under the claim, since he has explicitly stated that his nuts must work with conventional studs without the special hub which your product requires. In other words, although your product does fit on a threaded stud, as the claim says, in his reply he has defined "threaded stud" in such a way as to limit them to just conventional wheel studs.
Or, is the patent broader than it seems? Infringement under the Doctrine of Equivalents The "Doctrine of Equivalents" states that any element in a claim covers that which is literally claimed, and also equivalents of those elements. Over the years courts have struggled with just what this means, and how far the doctrine would extend coverage. The conventional definition of an "equivalent" is something which does the same thing in the same way to accomplish the same result. Clearly, a machine screw and a bolt are equivalents, since they differ only in size and whether the head is slotted or hexshaped. A hinge and a rubber strip might be equivalents, but they might not - a hinge might be separable, and a rubber strip is not, for example. An incandescent light bulb and an LED might be the same if all that was needed is a light, but different if current drain or heat are issues. A different scope of equivalents is given if the element is closer to the point of the invention, or just a peripheral fastener or the like. In recent years the various Festo decisions, and other cases, have limited the scope of the Doctrine of Equivalents - in some cases eliminating it entirely if the claim was amended during prosecution to avoid prior art. This is all very legalistic and technical and not really an easy matter to determine. The bottom line is, if you think that your product might be infringing a claim under the Doctrine of Equivalents, you really need to get an experienced patent attorney involved.
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