India: Patent Claims And Their Types

The exclusive rights to the invention or inventive feature/s is defined by the claims of a patent. In simple terms, the claims define the actual area of exclusivity or protected features of an invention or the patent. The claim includes the features or aspects of the invention which the patentee can stop others from making, using and selling without his/her permission. Therefore, in an application for patent, the claims are of paramount importance in patent prosecutions at the Patent Office and in a patent litigation before the courts.

A claim is a statement of novel technical features expressed in terms which define the scope of the invention sought to be protected. As stated above the claims are the defining boundary of a patent, tells third parties what they can and cannot do where the said invention is concerned.

A patent claim is composed of three important parts:

  1. The Preamble - identifies the category of the invention protected by that claim. It is used in the very first claim of an invention or say in the independent claim. Preamble should be consistent with the title of the invention. For example, for a composition, preamble may be 'A composition for...', whereas for an apparatus, preamble may be 'An apparatus for...'.
  2. Transitional Phrases - in patent applications are important, as they specify whether the claim is limited to only the elements listed, or whether the claim may cover items or processes that have additional elements. The most common open-ended transitional phrase used is 'comprising'. However, many claims use closed-ended phrases such as 'consisting of'. 'Comprising' denotes a very broad and open claim which can be interpreted to include unspecified ingredients, even in major amounts. Consisting of would generally imply a narrow claim not allowing inclusion of materials other than those already stated in the claims.
  3. Body of the claim - is the portion that follows the transitional phrase. The elements and limitations of the claim are written in the body. The body should also explain the relationship of different elements with one another.

A sample:

A method for searching semiconductor parts using a last alphabet deletion algorithm, the method comprising the steps of: a specification input step S110 of inputting specifications for semiconductor parts manufactured by semiconductor part manufacturers through a part specification input device 110;

Where The Preamble Transitional Phase Body of claim

As a claim construes the scope of an invention, its drafting should be done meticulously in order to get the exact patent protection that is sought to protect the invention against potential infringers. Following points should be kept in mind when drafting a claim:

  • A claim must be specific and not vague, ambiguous, speculative or hypothetical in nature.
  • Claims must be supported by the description (fairly based on the description).
  • Each claim should be a single sentence and should be clearly worded.
  • Claim(s) of a complete specification shall relate to a single invention, or to a group of inventions linked, so as to form a single inventive concept and, shall be clear and succinct and fairly based on the matter disclosed in the specification.
  • Each claim should be precise and without unnecessary repetition.
  • Rights are given to claims only, not for any matter described in the complete specification.
  • Claims define the boundaries of legal protection and form a protective fence around the invention.
  • Each claim is evaluated on its own merit and, therefore, if one of the claims is objected to, it does not mean that the rest of the claims are invalid.

Types of Claims: Claims are categorized on the basis of Drafting, Inventions, Field and Structure.

On the basis of Drafting:

Independent Claims: also called the 'Principal Claims' are the first claims and should clearly define the essential novel features of the most preferred embodiment of the process, apparatus, device or the product that constitutes the invention and should be properly characterized with respect to the 'prior art', defining all the technical features essential to the invention or inventive concept. Independent claims are always broader in scope as compared to dependent claims. There can be multiple independent claims.

  1. A method for searching semiconductor parts using a last alphabet deletion algorithm, the method comprising the steps of:
    a specification input step S110 of inputting specifications for semiconductor parts manufactured by semiconductor part manufacturers through a part specification input device 110;

Dependent Claims: depend on a claim or several claims. Generally, the subsequent claims of an Independent claim are Dependent Claims.

  1. The method according to claim 1, wherein the part-dependent information construction step S120 comprises constructing information obtained by converting the specifications for the semiconductor parts inputted in an electronic file format in the specification input step S110 into an HTML file format that users can easily view on a general web page using the web document conversion device 130.

Omnibus Claims: refer to the description or drawings in claims. They are allowed only if the statement of invention is incorporated in the specification.

On the basis of an Invention:

Product Claims: claim the actual product of the invention. For example: a chemical compound, compound used as pharmaceuticals, composition mixtures such as alloy, food, drink etc.

A pharmaceutical composition comprising: a) an amido‐amine polymer comprising an amido‐amine dendrimer derived from:

(i) a multi‐amine; and

(ii) a multifunctional compound comprising two or more amine‐reactive groups; and b) a pharmaceutically acceptable excipient.

Process Claims: claim a new process or method to achieve the desired result. For example: Methods of preparation, methods of analysis, method of treatment etc.

1. A process for producing a nanoparticle, said process comprises the steps of:

  1. mixing an ester polymer conjugate with a biologically active compound in an organic medium, and
  2. desolvating the ester polymer conjugate by means of adding alcohol and water, in the presence of a divalent metal, wherein the ester polymer conjugate is a conjugate of poly(methyl vinyl ether-co-maleic anhydride) with a hydroxyl-terminated molecule, wherein said hydroxyl-terminated molecule is selected from a polyethylene glycol and a derivative thereof containing a hydroxyl-terminal reactive group.

On the basis of Field

Markush Claims: recite alternative embodiments of a single invention. These claims are used to conserve writing additional claims. The Markush claim allows a patent drafter to select a particular element of the invention wherein that element may be selected from a group of elements all sharing some common characteristic.

For example, 'an alcohol selected from the group consisting of methanol, ethanol, and isopropanol'.

Jepson Claim: style is used in the process or product claim where the invention is a modification or an improvement of the existing technology. The word "wherein..." is often used to structure the Jepson Claim.

Swiss type Claim: is the structure of claim used to claim the second or new medicinal use of known substances or compositions. India does not allow this type of claim under the provision of section 3(d) of the Patent Act, 1970.

On the basis of Structure

Means plus function Claim: refers to a type of patent claim that does not specify a particular structure for an invention, but instead describes a means for achieving some function. In legal terms, in a means-plus-function claim, an element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of the structure, material, or acts in support thereof, and such a claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

Composition Claims: are used where the invention to be claimed has to do with the chemical nature of the materials or components used.

Considering the above we can conclude that claims must be drafted meticulously in order to get the patent protection that is sought and protect the invention against potential infringers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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