“Technical poetry”

In Insights, Uncategorized

21 February, 2014

With the ambition to become European Patent Attorneys, a dozen of eager “students” follow our in-house EQE basic program, me being one of them. As we have come to learn, the articles and rules in the European Patent Convention (EPC) are often not enough to fully understand the concepts of European Patent Law, but case law, and the knowledge of how to interpret the case law is often necessary. The latest class in the EQE basic program covered the topics of Unity of invention, Disclosure of the invention and Claims.

The first topic, unity of invention, is a mere administrative concept and is not related to the fundamental requirements for granting a patent. EPO wants to get paid, and it wants to get paid for each invention, or rather each inventive concept. Art. 82 EPC ensures that even though an application may contain more than one invention (note, on filing), you cannot pay the fees for only one application if you seek protection for more than one invention. However, even though unity is not a fundamental requirement for granting a patent, the patent application may very well be refused if requirement of unity is not fulfilled.

While unity deals with the fact that EPO wants to get paid, disclosure of the invention (Art 83 EPC) or “sufficiency of disclosure” benefits third parties by enriching technology. The general principle is that the applicant may obtain a monopoly protecting his invention only if he provides a complete disclosure of the invention. Here EPO is tough; if the application on the date of filing fails to teach the skilled person of how to carry out the invention, the application will be refused, and there is no remedy for an insufficient disclosure.

Art. 84 EPC states i.a. that the claims shall be clear and concise. However, a very clear claim (i.e. lots of features) may often unduly limit the scope of protection.  For me, this balancing act between clarity and undue limitations, is often the toughest part in claim drafting. All of the essential features of the invention have to be included in the claim, but preferably not much more. One way of describing claim drafting to an unskilled layman, is in terms of “technical poetry”. However, perhaps contrary to an ordinary poem, the words and terms defining the features of the invention in a claim do not necessary need to flow (but they may very well do so). A logical relationship among the words, terms and features is the key.

Oskar Kronsell, Associate

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