Patent drafting is a subtle art. The drafter has to be careful about his/her choice of words throughout the application, as each word may add a limitation to the invention. A patent practitioner must be careful in choosing words so as to avoid absolute terms in patent application and provide the broadest allowable scope of the invention.
Avoid Absolute Terms in Patent Application
Certain terminology is particularly advised to be preferably avoided while writing the patent application unless there is a specific reason to use the same. Sometimes, the use of these words is commonly referred to as “patent profanity list.” Such patent profanity list includes words and phrases that can narrow the scope of the patent application and may cause unnecessary complications during the prosecution and/or the litigation of the patent application.
The general advice is to avoid the use of absolutes in the description of the patent application, unless the writer is certain that the use of an absolute in that particular situation is correct and not limiting to the disclosure. For example, by the use of words, such as “must,” “always,” “mandatory,” “essential,” “critical,” or the like, it is implied that a particular feature of the invention as being described is absolutely required and that the absolute limitation be included in all the claims.
In other words, describing a feature of the invention with an absolute term suggests that the invention is not complete without that particular feature. This may result in limiting of the scope of the claims of the patent application. As may be understood that narrowed claims can be designed around by infringers causing the patent to be less valuable.
It is rather advised to change an absolute to some alternate, such as “preferred”. Such non-absolute term can avoid having the associated features read into the claims, and thereby not unnecessarily limit the scope of the claims of the patent application.
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