What is a patent?
What are patent claims?
How are patent claims interpreted?
Advice for patent owners
A granted patent is an exclusive IP right to prevent others (eg, competitors) from manufacturing, using, selling, offering for sale, importing or exporting an invention for a limited period.
In exchange for this exclusive right, the patent must include a technical disclosure to the public regarding how to make, use or perform the invention. Such disclosure helps to pursue the objective of patents more generally – namely, to broaden the state of the art and further stimulate innovation.
According to the European Patent Convention (EPC), the claims of a patent define the invention. A claim is a definition, in technical and non-technical terms, of the scope of protection of a patent. In other words, the boundaries of the patent owner's exclusive rights are defined solely by these claims. Therefore, the claims are an essential part of the patent.
How are patent claims interpreted?
In Europe, according to the EPC and its Protocol on Interpretation, the contracting states' national courts should interpret claims by adopting an approach that combines fair protection for the patent owner with a reasonable degree of certainty for third parties.
In this regard, the patent's claims should not be interpreted strictly, in the sense of only the dictionary definition of a certain wording. However, claims should not be treated as mere guidelines either, since they play a determinative part in deciding the patent's scope. The protocol thus requires the courts to find a balance between the two extremes to guarantee both fairness to the patent owner and a reasonable certainty for the public as to what the claims cover.
Unfortunately, there is no harmonisation or related uniform interpretation and application of the EPC and its protocol throughout the EPC contracting states. Indeed, on a national level, the courts have taken different paths with regard to determining a patent's scope of protection. Therefore, substantial differences in the interpretation and application of patent claims may still exist between the various EPC contracting states.
Since navigating through national patent procedures can be challenging, patent owners are advised that a carefully drafted and well-considered set of claims may contribute to more efficient procedures on a national level – for example, in nullity or infringement proceedings before the national courts.
Although vague and ambiguous claim drafting is a well-documented strategy in the literature, patent owners should be aware that the European Patent Office thoroughly examines the clarity of claims.
Therefore, a well-drafted claim set – and, in general, a well-drafted patent specification – is a definite advantage in terms of reducing the likelihood of clarity objections during the examination phase of patent applications. Such a claim set can also reduce the likelihood of lengthy, and thus often costly, debates before the national courts on the scope of protection during infringement proceedings.
For further information on this topic please contact Olivier Van der Poorten at GEVERS by telephone (+32 2 715 3711) or email ([email protected]). The GEVERS website can be accessed at www.gevers.eu.