Claim
The term patent claim is used in the German-speaking area in two different meanings that lead to misunderstanding if confused.
In the very frequent and legally compliant use of the term patent claim , it denotes a special text passage in the more extensive text of a German or European patent application or a patent. This article is concerned with that understanding of the term claim .
In addition, the term patent claim is sometimes used to denote the rights or claims to which a patentee is entitled under his patent.
Conceptual content
A patent claim is a special text passage in the more extensive text of a German or European patent application or a patent. One or more patent claims are prescribed by law in a patent application or patent, and they are assigned two functions, namely, on the one hand, the representation of that combination of features of an invention that is intended to justify the grant of the patent, and on the other hand, the limitation of protection of the possibly granted patent for this combination of features.
The English name is "claim" or "patent claim", the French "revendication".
Legal basis
The German Patent Act (PatG) requires patent claims as the location of the presentation of the combination of features of an invention that is worthy of patent in Section 34 (3) 3. Section 14 stipulates that the patent claims also limit the scope of protection of any granted patent.
The European Patent Convention (EPC) makes the same provisions in Art. 78 (1) c, Art. 84 and Art. 69 (1).
Demarcation
Similar names in the German language, but somewhat different from a patent claim (or the patent claims) are the claims from a patent , which are then - not often in the profession - collectively referred to as patent claims . In particular, the term claim then has a completely different meaning and above all not the meaning of a special text passage in the text of a patent application or a patent.
In general in the legal system, a claim is the right of the owner to demand an action or omission from a specific other person. The claims of the proprietor against another person based on his patent are omission of the use of the patented teaching for the future, possibly compensation for patent infringement in the past and then possibly auxiliary claims such as information about the extent of the infringement to determine the compensation etc. These Claims based on a patent are outside the scope of this article. They are shown in Patent >> Legal Protection .
details
Position and function of the claims in the patent application
In general, patent applications and patents are more or less extensive text works for the presentation of a technical invention and its environment. Most of the time they also include drawings to which the text refers. From the start, the text contains several, usually clearly distinguishable parts, namely
- the presentation of the state of the art, i.e. what was already there in the relevant profession before the invention
- often the formulation of an object on which the invention is based
- the description of the invention and the variants, options and special configurations thereto,
- the claims
- a summary
Since the textual description of an invention often contains many variants and options, the conventional description of an invention in its diversity is not suitable to reveal what should be used to justify patent protection and what should accordingly limit the protection of the patent . Rather, the claims have this function. Accordingly, they usually do not provide any content that goes beyond the presentation of the invention in the description, but excerpts from the description as briefly and concisely as possible, usually in key words and not in grammatically complete sentences, a desired combination of features that also justify patent protection and should limit.
Since the patent claims are the passages in the text that reproduce what the patent is intended to justify, they and their formulation are the most important subject of the examination procedure of the patent application before grant.
Multiple claims
Most patents and their applications - as in the example opposite - contain several patent claims. They are then numbered consecutively.
Independent and dependent claims
A claim can stand on its own and is then referred to as an independent claim. However, it can also refer to other patent claims and is then referred to as the dependent patent claim . The dependency means that the dependent patent claim takes up the content of the referenced claim in full and adds its own content to it. Dependent claims are treated as shorthand letters. Instead of writing down the referenced claim again, it is referred to so that redundancies are avoided in both writing and reading.
Claims to different categories
Inventions often have different facets (example: triggering an airbag in a motor vehicle). They can be understood as a process (detection, evaluation, triggering ...), but also as equipment (sensors, circuit / computer, trigger ...). Both facets can then also be described in a patent application and ultimately formulated as independent patent claims in different categories (process claim, equipment).
Examination and amendments of the patent claims in the examination procedure
A very important part of the substantive examination procedure for a patent application is the formulation of patent claims that are useful for the applicant and that the examiner considers allowable. Most recently patented claims are usually worded very differently from the originally submitted. The examiner responsible for examining an application is primarily concerned with examining the content of the patent claims. He will not check all the contents of a patent application, but only what is presented to him in the form of patent claims.
The formulation of the claims is a matter for the applicant. After elaboration, he submits them to the examiner in the form of one or more applications for examination. The examiner may not formulate and grant claims on his own initiative. However, an examiner can make suggestions or give advice, which the applicant can then adopt in the form of a request.
By formulating the patent claims and submitting them to the examiner as a request, the applicant shows that he is in agreement and can live with the scope of protection that may arise. If the responsible examiner then considers the claim to be entirely patentable, the patent can be granted if there are no other obstacles to grant.
A very regular constellation in the examination procedure is that the patent office demands narrower patent claims because a given formulation is viewed as too general and not worthy of patent, while the applicant wants patent claims that are as broad as possible in order to have a broad scope of protection and to make circumvention solutions more difficult.
If patent claims have to be changed in the examination process, the requirement of the original disclosure applies to the admissibility of these changes .
publication
Both patents and their applications are officially published. The publications also contain the claims. In this way, the public learns which patent claims were initially requested for patenting and which patent claims were last granted, if any.
Official fees
Both the German and the European patent offices charge official fees in addition to the other fees, depending on the number of patent claims. The DPMA demands € 20 per claim from the 11th claim, the European claim € 235 from the 16th claim and even € 560 per claim from the 51st.
Utility model
The above statements (apart from the test procedures and categories) also apply to utility models. There, however, the relevant passages are not called claims but to protection or protection claims .
Individual evidence
- ↑ PatG § 34 (3) 3.
- ↑ PatG § 14
- ↑ EPC Art. 78 (1) c
- ↑ EPU Art. 84
- ↑ EPC Art. 69 (1)
- ^ Ordinance on proceedings in patent matters before the German Patent and Trademark Office (Patent Ordinance - PatV) of September 1, 2003, § 9 patent claims