Patent Claims and Infringement (JWB)

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  • Claims:
    • most important part of a patent
    • define the boundaries of the property right
  • Interpreting claims for two reasons
    • with respect to the prior art, to determine validity
    • with respect to some possibly infringing thing
  • Term used for interpreting: does the claim “read on” the prior art or possibly infringing device?
    • A claim reads on something if everything (elements and relationship among elements) in the claim appears in the something. It does not matter if other things are present in that something
      • Example:
        • I claim a chair comprising
a seat;
a back attached to the seat; and
legs attached to the seat.
        • Infringing:
          • a chair that has a seat, back, and legs, plus armrests
          • a chair with a seat, back, and legs, with foldable seat part
        • Non-infringing:
          • stool with seat and legs, but no back
      • Example 2:
        • I claim a stool comprising
a seat;
legs attached to the seat; and
no back – this claim would make this stool patentable even with chair in prior art
        • all chairs infringe stool patent
        • If the stool were patented first, the improved stool with a back (i.e. chair) would be patentable, but the chair patent owner could not make, use, or sell chairs without permission of stool patent owner
        • Correspondingly, stool patent owner cannot add backs to his stools without permission of chair patent owner
        • Limited testing by each side is allowed
        • Result: incentive to cross-license
  • Claims “consisting” means exactly the list of things claimed and no more, rather than “comprising”
  • Means and function language in claims
    • As it’s described in the specification in the earlier part of the patent
    • “Doctrine of Equivalence” = trivial changes still infringe
    • Dependent claims: add elements
      • Example: claim 1 – seat and legs, dependent claim 2 – add back
        • everything owned in claim 2 would be owned in claim 1 (claim 1 is broader, more likely to be found invalid)
        • claims 2, 3, 5, 6 get more narrow (and thus harder to find invalid)