A patent claim is that part of the patent specification which defines the boundaries of patent protection. Provisional patent claims outline the elements of an invention that protect the invention from others using it illegally. Hence, claims ensure appropriate enablement and disclosure in instances where one processes the provisional application quickly or on a small budget. When one includes provisional patent claims in the application, it establishes an explicit record which associates with the first filing date. So, they form a protective boundary line around your patent that lets others know when they are infringing on your rights. It means that your words and phrasing in claims define the limits of this line.
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Provisional Patent Claims: Must Know
Provisional patent claims prevent the potential liability that stems from poorly drafted patents. Without these claims, it becomes difficult for the inventor to protect future claims. So, it is important for one to draft the patent claims in the right manner with a proper format. One must include the scope, characteristics, and structure while drafting patent claims in a provisional application.
Every provisional patent claim has three sections- the preamble, the transitional phrase and body of the claim.
The preamble is the first part of the claim. The preamble states whether the claim is for an apparatus or a method. So, to write a preamble for apparatus, the claim could start with “An apparatus for making a mark on a writing surface”. To write a preamble for method, the claim could start with “A method for making a mark on a writing surface.”
Comparatively, the transitional phrase is the “comprising phrase”. One can use three different types of transitional phrase that is comprising, consisting of and consisting essentially of. Hence, you always want to use the “comprising” transitional phrase, as it gives the broadest protection.
Everything after the transitional phrase is the body of the claim. The body of the claim defines the elements and limitations of the claims.
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Only the patent claims define the scope of protection that a patent grants to the applicant. The rest of the patent specification only helps explain the invention in detail. So, it is necessary to include a full and complete description of the invention through provisional patent claims in the provisional applications.
One can always rearrange the application, but cannot add any new material to it. Therefore, having claims present at the time of filing helps ensure that at least you have given the description of your invention sufficiently. So, when drafting a patent application it is good practice to spend time drafting quality claims.
The Patent Office’s Position:
The USPTO publishes the rules regarding patent examination processes and patentability in the Manual of Patent Examination Procedure (MPEP). The USPTO denies priority when a provisional application cannot meet the written description requirements. That is why provisional patent claims must adequately describe the invention in a detailed manner. Whether the patent office will accept the provisional application or not depends on the patent claims that one includes in the application.
Enablement and written description:
Written descriptions and enablement must be met in all patent applications, especially adhering to the first paragraph of Section 112 of patent law. Moreover, enablement is met when patent specifics contain complete instructions that any expert in the area could use to make the invention.
The written description must compare how the claims describe the invention to the distinguishing parts of the final product. Hence, the inventors must have a working prototype and must describe the invention in figures, drawings, words, and formulas. So, a person of skill can verify that the assembling of the invention was correct, thus satisfying the law.
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