Whether attacking patent claims as part of building defenses to allegations of infringement, or trying to procure patent protection for technology, our patent attorneys are on the outlook for pitfalls in patent claim language.
The language of the patent claims determines the scope of the patent protection. The claims are the holy grail of the application, establishing what the patent holder may prevent others from making, selling, using and importing. Accordingly, one would think that extra care and attention would go into making the patent claims perfect, or at least impervious to attack. Yet reviewing claims of numerous issued patents provides example upon example of patenting pitfalls.
Dennis Crouch in his Patently-O blog (www.patentlyo.com) recently started a conversation of language to avoid in patent claims, which inspired a great dialogue and several snickers among patent practitioners. Many of the lessons have likely been learned through trial and error before the USPTO, as well as based upon emerging Federal Circuit case law, which in one opinion can send render valueless popular claiming techniques.
Pitfall No. 1: Absolute Language
Use of absolute language, such as “each,” “every,” “without any,” or “none,” may make design around easier. If a claim requires that “each” device A have X and an accused product has even one device A without X, the would-be infringer may avoid liability. Similarly,
Pitfall No. 2: Single Infringer Issue
For method claims, Federal Circuit law is clear that one party needs to perform all of the steps of the claim in order for infringement to occur. Preparing defenses to infringement
If you have a patent issue, or wish to register a patent, you may contact one of our patent attorneys for a free evaluation or call 866.936.7447 (International Toll Free).