Claim Drafting Workshop
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Claim Drafting WorkshopPresented By:Jean WitzKara Geisel
Overview Questions to ask regarding yourinvention Laws and required parts of a claim Example Claims One possible approach to drafting claimsInvention-Con 2017Claim Drafting Workshop4
Review Invention Prior to writing claim(s) answer these questions:What is the invention?What are the elements that make up the invention?How do the elements relate to one another?Do you have more than one invention?Tangible: Apparatus, machine, compositionMethod: Making or UsingAre there multiple embodiments of the same invention?Invention-Con 2017Claim Drafting Workshop5
What the Law Says A nonprovisional patent application must have at leastone claim particularly pointing out and distinctlydefining the invention. A claim may be written in independent or dependentform. An independent claim is a standalone claim that containsall the limitations necessary to define an invention. A dependent claim must refer to a claim previously setforth and must further limit that claim.Invention-Con 2017Claim Drafting Workshop6
What the Law Says A claim in dependent form incorporates by reference allthe limitations of the claim to which it refers. Claims must be fully supported and enabled by thedisclosure Claims must be drafted as a single sentence Claims should be arranged in order of scope so the firstclaim presented is the broadest Consistent terminology should be used in both thepatent disclosure and the claimsInvention-Con 2017Claim Drafting Workshop7
Claim(s) Defines the invention and what aspects are legallyenforceable Must conform to the invention as set forth in theremainder of the specification Terms and phrases used in the claims must findclear support or antecedent basis in the descriptionso that the meaning of the terms in the claims areclearly understood by reference to the descriptionInvention-Con 2017Claim Drafting Workshop8
Types of Claims – Invention CategoriesProduct - A claim that is directed to elements thatcan be: Active (a Device/Apparatus) Non-active (Composition or Article ofManufacture) Combination thereof Method (Process) - A claim that describes/defines a series of acts or steps for performing adesired function or accomplishing an intendedresultInvention-Con 2017 Claim Drafting Workshop9
Types of Claims - Independent & Dependent A claim may be written in independent or dependentform An independent claim refers to a stand alone claimthat contains all the limitations necessary to define aninvention A dependent claim refers to a previous claim and mustadd a further limitation to the previous claim A claim in dependent form incorporates by referenceall the limitations of the claim to which it refersInvention-Con 2017Claim Drafting Workshop10
Claim Formalities Starts on a separate sheet with the Heading “Claim Listing” 1.5 or double spaced Each claim is a single sentence (begins with a capital letter andends with a period) 3 independent claims; 20 claims total before excess fees aredue Numbered consecutively in ascending order; originalnumbering preserved throughout prosecutionInvention-Con 2017Claim Drafting Workshop11
Patent Claim StructureA claim in a utility application or patent has three (3) parts:1. Preamble: Provides context for the claimed inventionLanguage of a preamble may or may not limit the claimedinvention2. Transitional phrase: Establishes whether the claim is “open,” “closed” or “partiallyopen”In other words, the degree to which a claim is limited to onlythose elements recited in the claim body3. Claim body: Recites the limitations (structure and/or acts in clear, full, conciseterms) necessary to define the inventionInvention-Con 2017Claim Drafting Workshop12
Three Basic Rules - #1 Preamble Every claim needs a preamble, which is theintroductory phrase in a claim. The general ruleis that the preamble of a claim does not limit thescope of the claim, but try and stay away fromfunctional language. Try: “A shovel ” Instead of: “A shovel for digging ”Invention-Con 2017Claim Drafting Workshop13
Three Basic Rules - #2 Transition Every claim needs a transition. The most common transitions are:“comprising” “consisting essentially of” and “consisting of.” “Comprising” is by far the most common because it means theinvention includes but is not limited to the elements identified in theclaim. “Consisting essentially of” limits the scope of a claim to the specifiedmaterials or steps "and those that do not materially affect the basicand novel characteristic(s)" of the claimed invention. “Consisting of” is closed and means that the invention is limited tothe elements identified in the claim.Invention-Con 2017Claim Drafting Workshop14
Three Basic Rules - #3 Antecedent Basis The first time you introduce a limitation (i.e., anelement, characteristic, internal reference, etc.)you MUST introduce it with either “a” or “an”, asis grammatically appropriate. (i.e., Primaryantecedent basis) Subsequently you refer to the already introducedlimitation by either “said” or “the.” (i.e.,Secondary antecedent basis)Invention-Con 2017Claim Drafting Workshop15
Example: Antecedent Basis Issues A lack of clarity could arise where a claim refers to "said lever"or "the lever," where the claim contains no earlier recitation orlimitation of a lever and where it would be unclear as to whatelement the limitation was making reference. Similarly, if two different levers are recited earlier in the claim,the recitation of "said lever" in the same or subsequent claimwould be unclear where it is uncertain which of the two leverswas intended.Invention-Con 2017Claim Drafting Workshop16
Example of an Independent Device Claim US Patent No.6,009,555, titled “Multiple ComponentHeadgear System.”Invention-Con 2017Claim Drafting Workshop17
Example of an IndependentDevice Claim1. A headgear apparatus comprising:a headband member having a frontal portion;a visor member removably secured to said frontalportion of said headband; andan eye shield member removably secured to saidfrontal portion of said headband.Invention-Con 2017Claim Drafting Workshop18
Examples of Dependent Device Claims2. A headgear apparatus as in claim 1, wherein saideye shield member is adjustable with respect tosaid headband member.3. A headgear apparatus as in claim 1, wherein saidvisor member and said eye shield member aresecured to said frontal portion of said headbandmember by a set of rivets.Invention-Con 2017Claim Drafting Workshop19
Examples of Dependent Device Claims(cont.)4. A headgear apparatus as in claim 2, wherein saidheadband member is made of neoprene fabric.5. A headgear apparatus as in claim 3, wherein saidheadband member comprises a continuous beadof sealant material.Invention-Con 2017Claim Drafting Workshop20
Example of an Independent Method ClaimUS Patent No. 6,635,1331. A method of making a ball, comprising:forming an inner sphere by forming an outer shell with afluid mass center;forming a plurality of core parts;arranging and joining the core parts around the innersphere to form an assembled core;molding a cover around the assembled core.Invention-Con 2017Claim Drafting Workshop21
Example of an Dependent Method ClaimUS Patent No. 6,635,1332. The method of claim 1, further comprising moldingnonplanar mating surfaces on the core parts, wherein thecore parts comprises meshing the mating surfaces.3. The method of claim 1, wherein forming the inner spherecomprises freezing a sphere of a fluid.4. The method of claim 1, wherein the forming of the coreparts comprises compression molding the core parts.Invention-Con 2017Claim Drafting Workshop22
Wrapping it All Together When you write a claim you want to introduce all of thecomponents and characterizations of the componentsthat are necessary for the invention to work and for it tobe different than what is already in the public domain. Try something like this (letters represent eithercomponents or characteristics of the components):1. A - insert title - comprising: A, B and C.Invention-Con 2017Claim Drafting Workshop23
Wrapping it All Together (cont.)2. The invention of claim 1 further comprising D, which is [insertconnection/relation].3. The invention of claim 2 further comprising E, which is [insertconnection/relation].4. The invention of claim 3 wherein D is [insert a specificcharacterization].5. The invention of claim 4 wherein E is [insert specific characterization].Invention-Con 2017Claim Drafting Workshop24
Wrapping it All Together (cont.) Notice the dependent transitions. When you are adding a component you use"further comprising" and then explain how thecomponent is connected to or relates with thecomponents already introduced. When you are further describing something thathas already been introduced you use "wherein."Invention-Con 2017Claim Drafting Workshop25
One Possible Approach Focus on the inventive concept What features set the invention apart from prior inventions? Identify fundamental elements Omit unnecessary elements unless they are needed todistinguish over prior inventions Terminology and interrelationships Select broad terms and identify their relationship carefully Claim review and revision Remove unnecessary claim elementsInvention-Con 2017Claim Drafting Workshop26
Focus on the Inventive Concept A claimed invention must be novel, non-obvious and have autility A Patent is not a marketing brochure Understand what the invention really is: What are the advantages of the new design? Is there more than one inventive feature?Invention-Con 2017Claim Drafting Workshop27
Identify Fundamental Elements Understand the disclosure of the prior inventions What have competitors previously done? Conduct a patentability search Define the potential claim elements What is the target? Alternative Embodiments The disclosure of prior inventions maybe helpful in developingalternative embodiments of your claimed inventionInvention-Con 2017Claim Drafting Workshop28
Claim Drafting – Costs vs Coverage How much can you afford to spend on claims? Independent in excess of 3 105 per (micro entity)Total claims in excess of 20 20 per (micro entity)Claim fees for small entity are double micro entityNot just at time of filing, but during prosecution What is your desired Patent Scope end state? Broadest possible valid claim? (longer prosecution) Claims with range of claim scopes? (high claim costs)Invention-Con 2017Claim Drafting Workshop29
Claim Review and RevisionTooSpecificMay Not BeValuableInventionToo GeneralInvention-Con 2017Claim Drafting WorkshopMay Not BePatentable30
Claim is Too BroadPrior ArtInventionClaim 1. A vehicle comprising:a frame body;a first and second front wheel and a first and second back wheelaligned and spaced from the first and second front wheel, each wheelrotatably connected to the frame body;a seat connected to the frame body; anda removable top portion made of cloth connected to the frame body.Invention-Con 2017Claim Drafting Workshop31
Claim May Be Overly SpecificClaim 1. A vehicle comprising:a motor;a yellow frame body including a plurality of hinged doors;a first and second front wheel and a first and second back wheel andaligned and spaced from the first and second front wheel, each wheel rotatablyconnected to the frame body and made of rubber;a seat connected to the frame body;a plurality of glass windows connected to the frame body;two red lights connected to the frame body;two metal bumpers connected to the frame body; anda removable top portion made of cloth.Invention-Con 2017Claim Drafting Workshop32
Claim Drafting DOso Consider drafting youro Review and reconcile both thespecification first and then yourspecification and claims, makingclaims based on terms used in thenecessary additions andspecification.corrections so that the claimterms find support (antecedence)o Think about what legal protectionin the specification.you want for your invention andtailor your claims accordingly.o Look at the claims in patentsissued in your field of technology.o Particularly point out anddistinctly claim the subject matterregarded as the invention.oo Check for antecedent basis issueswithin the claims.o Ensure that dependent claimsfurther limit the claim from whichthey depend. (35 USC 112(d),MPEP 608.01(n))Invention-Con 2017Claim Drafting Workshop33
Claim Drafting Cautions Do not use claims coveringmultiple statutory classes ofinvention (“A widget and methodfor using same ”). Do not use non-standardtransitional phrases, which mayraise questions of interpretation.(MPEP 2111.03) Do not use terms inconsistentlybetween the claims and/orspecification (e.g. visor, visormember, visor section, removablevisor portion). Do not refer back to only a portionof another claim in a dependentclaim (e.g., “The widget of theapparatus of claim 1 ”). Do not use a dependent claim toremove/replace an element from apreviously presented claim fromwhich it depends. (e.g., The vehicleof claim 1 where the removabletop portion is non- removable).Invention-Con 2017Claim Drafting Workshop34
Claim Drafting Cautions Do not use functional languagethat is unconnected to thestructure or steps that performthe function. Do no use language that merelysuggests, makes optional and,thus, does not limit the claim. Avoid using negative limitations Do not use terms in the claim thatunless clearly supported by theare unsupported by thewritten disclosure (specificationspecification.and drawings). Do not use trademarks ortradenames in the claims, insteaduse generic terms, e.g., “hook andloop fastener” instead of Velcro. Invention-Con 2017Claim Drafting Workshop35
Summary:You should now have a better understandingof: The questions you need to answer beforeclaiming your invention The format and structure of independent anddependent claims Possible methods of drafting your claimsInvention-Con 2017Claim Drafting Workshop36
Thank You!Presented By:Jean WitzKara GeiselInvention-Con 2017Claim Drafting Workshop37
Claim Drafting Workshop 4. Review Invention Prior to writing claim(s) answer these questions: What is the invention? What are the elements that make up the invention? How do the elements relate to one another? Do you have more than one invention?
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