Patent claims are the part of the patent specification or patent application. The claims of a patent define the scope of the invention and it is that technical part of the invention which sought the legal protection sought. Patent claims are the most important part of the patent during the prosecution and litigation. An exclusive right is granted to a patent to exclude others from making, using, selling or offering for sale the subject matter as defined by the claims.
In order to exclude others the patentee has to define the technology or invention which they are seeking for protection. Once a product or process is not fall within the scope of the claim, the applicant can not take any legal action to the other party who is using his invention in a similar manner. Therefore, the patent owner should demonstrate the technology in the claim with minimal set of limitation in order to prevent the potential infringers. On the other hand if the claim is very broad, there is a chance that the examiner might reject it during the examination and may require amending the claims in order to overcome the anticipation by prior arts.
A claim includes the following :
- Preamble reciting the class of invention
- Transition phrase such as comprising, consisting, containing, including etc
- Set of limitation that defines the legal protection
- optionally, a purpose clause that further describes the overall operation of the invention, or the goal that the invention achieves
Patent Claim Types
Two basic types of claims :
- independent claim
- dependent claim
Independent claim stands on its own and do not need to be read with other claims in order to interpret them. Independent claims are mostly written in a broad way to avoid permitting competitors to circumvent the claim by altering some aspect of the basic design. But when a broad term is used, it may raise a question as to the scope of the term itself. Therefore, an independent claim is followed by a depended claim which explains those terms in the independent claim.
In addition to the above basic claim types, there are also many special types of claim which are used in different circumstances. Sometimes a particular claim form is required by law if a patent is to be granted for a particular invention, such as for a second medical use of a known substance where the "Swiss-type" claim might be required. Another reason to use a particular claim might be to catch a particular class of infringer.
Another type of the claim is the omnibus claim. Omnibus claim has a reference to the description or the drawings without stating explicitly any technical features of the product or process claimed. However, omnibus claims are not allowed under the patent systems of most of the countries.