A patent claim is indisputably the most important part of a patent specification. It defines the boundary of the patent. To break it down, a patent claim defines exactly what is claimed by the invention and therefore what is sought to be protected. It clearly lays down what the patent does and does not cover. Simply put, the extent of protection conferred by a patent is defined by the patent claims. Particularly, a claim is usually expressed as a statement of technical facts expressed in legal terms, defining the scope of the invention sought to be protected.
Why is so important?
A patent claim is that part of the specification, which after the patent is granted, tells third parties what they cannot do insofar as the invention is concerned. Therefore, the exclusive right conferred by the grant of a patent is and the scope of protection is defined by a patent claim. Any mistake in drafting patent claims could result in an utterly useless patent. The rest of the patent specification only helps explain the invention in detail. Claims define the contours of legal rights when the patent is granted. Section 10 (4) (c) of the Patents Act, 1970 states that every complete specification must end with patent claim(s) that define the scope of the invention for which protection is claimed.
What are the types of patent claims?
Essentially, claims are of two types: Independent claims and dependent claims.
Independent claims: They are ‘stand alone’ claims that do not bear reference to any other claim. It contains a preamble and all the elements necessary to define the invention. The first claim is usually an independent claim that sets the tone for the protection claimed by the invention. Independent claims are usually broader as compared to the dependent claims so as to prevent potential infringers from circumventing the independent claim in any which way.
Independent Claims may be of three types:
1. A claim for a thing;
2. A claim for a method of making a thing;
3. A claim for a method of using a thing.
Dependent Claims: They always bear reference to an earlier claim or independent claim and limit their scope. Dependent claims are therefore relatively narrow as they limit the scope of an earlier claim. Further, dependent claims refine the scope of protection sought for an invention. Additionally, it may contain known features and even the minute aspects and optional features of the invention.
These are the basic types of patent claims. On the whole, claims must be drafted meticulously in order to get the patent protection that is sought and protect the invention against potential infringers.
How to draft a patent claim?
There is no straightjacket formula for drafting a patent claim. Drafting it depends on each invention, and what protection the Applicant seeks to claim on that invention. Depending on the protection sought by the applicant the claim may be constructed in a broad or narrow manner in reference to existing prior art. However, care must be taken to ensure that the independent claims are neither too broad (it cannot include only what the applicant has not invented) nor too narrow (where the applicant may lose out on necessary protection). Given the difficult nature of drafting patent claims, it is clear that drafting expertise is required to draft proper patent specification and claims. It is always better to engage in professional services for quality patent drafting.
Some of the interesting articles to read: