Claim Drafting in Patent Application – Patent Registration in India
Introduction to claims
In India, Every Innovative thing has been recognized as an invention after its completing its patent registration process. Claim define the outlines of rights, if and when a patent is granted for an invention. Hence, claims are the most critical are the most critical part of a patent application. In a complete specification the description is mentioned after by claims. Since, claims means the source of legal protection, it is suggested that they should be drafted carefully to cover all the aspects of the protection being sought at the same time often distinguishing the prior art from the claimed invention.
Clarity of claims
Claims which are essential part of its complete specification shall relate to a single invention, or to a group of inventions linked so as to form a single inventive concept. Claims shall be crisp, clear and fairly based on the matter disclosed in the specification.
A claim is a statement of technical facts expressed in legal terms that explains the scope of the invention required to be protected. To make any matter exclusive it should be described in the claims. Anything that is not in the claims will be considered as disclaimed and is available for public use. Claims define the boundaries of legal protection and form a protective boundary around the invention which is defined by the words and phrases in the claims. The claims should clearly define the scope of the invention with precision and accuracy. Each claim has its own merit and it’s not necessary that all claims are related to each other. It is important to make claims on all aspects of the invention to ensure that the applicant can get maximum protection.
Applicant should not claim for what is not included in the invention. The claims should not be too narrow, because that will not be effective against potential infringement. Hence, the full benefit of the invention may not accurate to the inventor. Drafting should be done in such a way that broad claims should come earlier and develops towards claims that are narrower in scope. Any confusing terms in the claims which confuses the scope of the invention should be avoided. A claim should be used for the protection of either a product or process, and should be in one sentence according to the standard practice.
A set of claims will contain one or more independent claim and a number of dependent claims which will depend on one or more proceeding independent claims. These are explained in more detail below.
- Independent claims: First claim introduced is always an independent is always an independent claim also known as ‘principal claim’. It clearly defines the novel features of the most important process or product of the invention. It should be characterized with respect to the ‘prior art’. The claim should explain sufficient details of interrelationship, operation or utility to establish that the invention achieves the intended objectives.
- Dependent claims: Dependent claims are derived from an independent claim that elaborate the features of the independent claim and can have some additional non-essential features and even the minute aspects and optional features.
- Multiple dependent claims: A multiple dependent claims refers to a dependent claim which further refers another claim.
Structure of claims
Claims are introduced in the complete specification after the description of the invention. Claims begin with statement of claims followed by the preamble. “I/We Claim”. Each claim should be in a single sentence and it should not be verbose.
Introductory phrase in the claims identifies the category and purpose of the invention.
- The first claim introduced is an independent claim also known as ‘Principal claim’ that should clearly explain the essential novel features of the most important process or product that constitutes the invention.
- The claim must be characterized with respect to the ‘prior art’, and define all the technical features essential to the invention or inventive concept.
- The claim should explain sufficient details of interrelationship, operation or utility to establish that the invention achieves the intended objectives.
- There is no limitation in the `number of claims that can be added in the specification. Additionally, if need, an extra fee needs to be paid for more than ten claims.
- Each claim should be clear to understand.
- The claims should be specific and complete in way that it covers the whole inventive element in it.
- Any term used in the claim should be present in the description.
- There can be more than one independent claim in a single inventive concept.
Construction of claims
Claims are written as a single sentence in a precise language. There are many facts features that need to be considered while writing a claim. Some of the facts are described below:
Parts of the claims
A patent claims constitute three essential parts
- The preamble: It is an introductory and expressionary statement that sets the limits of the invention in a broad manner. It identifies the catrgory and purpose of the invention, like whether the invention is related to an article, a device, an apparatus, a composition or formulation, a method or a process. The preamble can be considered as simple definition of the invention to be claimed. It is usually not considered to be a legally limiting constraint on the invention.
- The transitional Phrase: it is used to link the preamble to the patent claims of the specific elements. The traditional phrases are of two types. Open-ended transitional phrase: it gives the claim an interpretation of including the stated elements of the invention but not excluding the other additional elements. Examples of open-ended transitional phrases are “comprising”, “including”, “containing”, etc. Close ended transitional phrase It gives an interpretation of “being limited to nothing more than the specifically-recited elements in the part of the claims, Examples of close-ended transitional phrases are “consisting of”, “consisting essentially of”.
- The body of the claim: It explains the inventor’s elements and their relationship with each other. It has various elements of the invention that depends on the kind of parts, their functions in some sort of logical order and how they are connected to each order. Finally, the claims to a method invention will sequence the procedure generally in order in which they are to be carried out.
Every patent office has strict requirements and regulations of how a claim should be punctuated in order to avoid incorrect interpretation of the claims. It is important that the instructions of the patent office are strictly adhered to.
- A coma is used to separate the preamble from the transitional phrase and a colon separated the traditional phrase from the body.
- The body may be divided into various sub-paragraphs that define the elements of the claim and the penultimate element of a claim ends with “and”.
- Other punctuations such as parentheses, dashes, quotation marks etc., are not generally used in writing the claim.
The first time an element or part is mentioned to in a claim set, the indefinity article ‘a’ or ‘an’ is to be used and when the element is mentioned again in the claims, the definite article ‘the’ or ‘said’ should be used. In each claim set the antecedent basis needs to be re-established. Unawareness of antecedent basis can cause to claim scope being indefinite.
Specific Types of Claims
- Process or method claims: In this type of claims the entire process or method is claimed which clearly explains the entire procedure of the method of invention.
- Example: A process for making noodles, the process comprising: Boiling of noodles in water, Addition of spices and condiments and vegetable oils, Mixing of water and vegetable in desired quantity; Addition of noodles in desired quantity; Boiling of water-vegetables-noodles together and Addition of different sauces in the end to enhance the taste.
In an example steps performed, the method of making noodles is arranged sequentially in order in which they are performed. Department claims may include quantity of vegetable and water, heating temperature, amount of spices, condiments etc. Like the process of claim 1 wherein the quantity of water to vegetables stock is 1:2.
In this type of the claims the product is claimed which also explains the various elements of the product being claimed. A device as is commonly used in computer science and agricultural invention is also a product with a few active elements. The general format of a product claim is as under:
A device for comprising:
Part B connected to Part A (by some logical and functional means); and
Part C connected to Part A and Part B (to make the device functional).
Product by process claims
As the name indicates, this type of claims specify the process used to manufacture the product. The general format for a product-by-process claims are as under a composition prepared by a process comprising of;
Step B; and
In this type of claim, components or ingredients used in the process are explained in the details which include their chemical nature, quantity used in the manufacturing.
For Example: A probiotic drink composition comprising of live bacteria (lactobacillus casei Shirota), skimmed milk powder, sugar, glucose, water and more than 6.3 billion of live bacteria. Energy, proteins, carbohydrates, fat. The outcomes of claims majorly depends upon the information available in prior art documents , scope of invention and other relevant factors. Hope you all understand the Claim Drafting in Patent Application – Patent Registration in India from the above article. For more clarification about the patent registration, kindly visit our website.