A typical utility patent has a very distinct appearance.
On the first page of the patent, you will find a variety of background and identifying information about the patent. (As an example for this post, I’ll be referencing portions of this patent issued in 1989 for a rather wacky pair of novelty sunglasses.)
This will include:
- Patent number and the date the patent issued (top right-hand corner of the first page).
- Inventor’s (or lead inventor’s) last name (top left-hand corner of the first page)
- Title of the patent and an abstract providing a brief one-paragraph description of the technology covered by the patent
- List of all the inventors of the patent (as well as the towns where they lived at the time of filing the application)
- Identification of any assignee of the technology covered by the patent as well as their location
- Patent application number and date the application was first filed
- References to other patent applications to which the current patent is related and to which the current patent may claim priority
- Identification of the international and U.S. class of the technology involved in the patent
- Fields searched by the examiner during the examination of the patent
- Any relevant references cited by the examiner during examination
- Names of the examiners involved in examining the patent (primary and assistant)
- Names of patent attorney or law firm who represented the inventor or assignee during examination
- Finally, there is a representative drawing that depicts the technology covered by the patent
The following pages may be filled with additional drawings of the patent, prior art technology and various iterations of the technology covered by the patent. Each of the drawings will include numbered references to each of the various relevant parts of the technology depicted in the drawings.
Then starts a detailed written description of the technology found in the patent. This written description is organized into columns of numbered lines of text. In the description, every single numbered reference found in the drawings is discussed and described. The result, in a valid patent, is a written description which provides all of the teaching and description necessary to allow a person having average skill in the relevant technology to make the patented invention work without undue experimentation.
Finally, on the very last pages of the patent, you’ll find the most important and crucial part of the patent. A series of numbered, one-sentence paragraphs, called “claims,” which describe the precise technology covered by the patent.
These claims are akin to the description of real property that is found in a deed and constitutes the legal description of the invention — dictating the precise metes and bounds of what the inventor claims constitutes its invention. While the written description may disclose or discuss a variety of ways and means for performing the invention, only the material described and covered by the claims is actually protected by the patent.
In short, it’s the claims that will make or break a patent. If the claims of the patent “read”* on technology that already existed, the patent may be invalid for a lack of novelty. If the claims of the patent fail to “read” on an accused infringer’s activities or products, the accused infringer may not be liable for patent infringement. If the written description of the patent fails to describe how to make the technology described in the claims work, or if the claims describe technology that a person having average skill in the relevant technology could not understand in order to make the technology work, the patent may be invalid.
Thus, it is the claims, and the language used in the claims, that are the most critical and important part of any patent and are the key to any patent litigation.
*In patent law, when a product or process possesses the technology covered by a patent claim, that product or process is said to “read” on that patent claim.
Jason Schwent is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of the Patent Billy Goat. You can find Jason on Google+, Twitter, and reach him at (314) 552-6291 or firstname.lastname@example.org.