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euro patent claims.
Posted by Anonymous . updated on 2/26/2009
I am reading the claims of a European patent grant. The claim ends with: ?characterised in that: ...? the clause includes further "limitations".
Is what follows ?characterised in that? construed as being a limitation?
Is this equivalent to the ?whereby...? in US claims.
Thanks,
Ron.
Answers (4)
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Isaac
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I believe the material provided after "characterized by" is supposed to be the invention while the portion prior to that is supposed to be old. In other words, the claim is in Jepson form. Jepson claims are typically avoided in US practice.
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EPOexam...
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both the characterizing portion and the preamble contain real limitations of the scope. The characterizing portion should contain those features that are new and inventive, while the preamble (the part before "characterized in that") shows the combintation of features known from the prior art.
The main reason the EPO wants the two-part form is to have the inventive contribution more readily visible for others reading the claims.
Don't worry too much about phrasing the claims in the two-part form initially. If all else is well with the claimed subject-matter, it is often not be objected to, and otherwise the examiner will insert the "characterized in that" part himself.
However, as far as I know (and people can correct me) US examiners treat the features in the preamble as tacitly assumed to be known or obvious. This is in any case not so in Europe, where the claims can also be amended to move features from the preamble to the characterizing portion if the prior art so allows.
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Isaac
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Quote However, as far as I know (and people can correct me) US examiners treat the features in the preamble as tacitly assumed to be known or obvious.
USPTO Examiners would make that assumption if a claim form using "characterizing" is used. ? In fact a USPTO Examiner would take the position that the applicant is admitting that the preamble features were known in the prior art. ? ?In theory such "admissions" can be overcome, but in actual practice overcoming an admission can be extremely difficult.
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mediche...
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in the light of the above can i say the granted claim's precharcterized claim is giving the freedom to operate... 
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