Old-style 'omnibus claims' are often overlooked in patent infringement disputes. The usual assumption is that these claims are very narrow in scope, and are limited to the  specific examples of the invention shown in the patent. Therefore, if a competing product doesn't infringe any of the other claims, it is presumed not to infringe the narrower omnibus claim. However, in a recent decision of the Federal Court (Reckitt Benckiser Healthcare (UK) Ltd v Glaxosmithkline Australia Pty Ltd (No 5) [2015] FCA 486 (20 May 2015)) Justice Rares turned this reasoning on its head. He found that  a syringe of Glaxosmithkline (GSK) used for the  administration of Children's Panadol infringed Reckitt's patent, but only in respect of the omnibus claim. In effect, the omnibus claim was found to be the broadest claim of the patent, covering the any syringe which took "the substance" of the syringe described in Reckitt's patent.

Reckitt's patent was for a dispensing apparatus comprising a bottle, bottle neck liner and a flat-nosed syringe. This apparatus was used in its Nurofen for Children range. This case concerned two of GSK's syringes for its rival Panadol product. The primary difference between the two Panadol syringes was that one syringe consisted of a cylinder that had the same diameter along its length (see Annexure A below), whilst the other had a narrower tip which then widened to a cylinder of greater diameter (see Annexure B below).

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 The relevant section of claim 1 of Reckitt's patent read as follows:

 ...the barrel [of the syringe] terminating at its distal end in a generally flat face having a diameter corresponding to the diameter of the syringe barrel....

Whether the GSK syringes infringed claim 1 turned on the interpretation of the word "barrel" in the claim. Justice Rares held that barrel would be understood to refer to a cylinder of generally uniform diameter along its length. Therefore, the syringe shown in Annexure A was held to infringe this claim, whilst the syringe in Annexure B, was held not to meet the definition of a "barrel" as it widened at a point along its length, and so therefore did not have uniform diameter.

Nonetheless, the Annexure B syringe was found to infringe claim 9, the omnibus claim, which read as follows:

A liquid dispensing apparatus, substantially as described with reference to the drawings and/or examples.

 None of the drawings (see for example Figure 4 below)  in the Reckitt patent showed a syringe that varied in diameter along its length. However, it was still found that the GSK syringes infringed this claim. In interpreting the claim, Justice Rares found that, the diameter of the syringe notwithstanding, the GSK syringe took "the substance of the...syringe described in the patent and drawings as stated in claim 9".

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This case is unusual in that the alternative syringe was found to infringe omnibus claim 9 but not claim 1. Generally, omnibus claims are interpreted more narrowly than other claims so would not be infringed unless at least one of the broader claims was also infringed. However, in this instance, the court has found that the disclosure and drawings, as generally claimed in claim 9, could encompass a cylinder of variable diameter that was outside the scope of the specific recitation of "barrel" in claim 1.

Omnibus claims have been frequently added to Australian patent applications, generally as a "back up" position should none of the other claims be found to be valid. The incidence of such claims is expected to diminish with the stricter requirements for omnibus claims introduced as part of the Raising the Bar reforms, but there remain many granted Australian patents with these types of claims.

 The purpose and scope of omnibus claims was also discussed fairly recently in the case of Britax Childcare Pty Ltd v Infa-Secure Pty Ltd [No 3] [2012] FCA 1019, where Justice Middleton stated that for a product to be found to infringe an omnibus claim, it was not required that the infringing product be an "identikit" of the drawings of the patent but at the same time, "a patentee who chooses to make a claim...substantially as described and illustrated should not be better off than one who puts his claims into words"

This decision has been appealed by GSK and it is expected that the appeal will be heard later this year.