Relative terminology means short-hand or similar terms that are used in our day-to-day life to refer to any certain entity of concern. The use of relative terminology can be often seen in public speeches, debate, stage shows, etc. to engage the maximum amount of audience. It is appropriate to use relative terms to point out certain linguistic jargons and famous relative terms to address crowd familiar with it. While the use of relative terminology is often discarded in formal/ official events, journals, official websites, such as seminars, conferences, in research papers, review papers, USPTO site, etc., due to its uncertainty towards determination of one exact meaning in all available aspects. Similarly, use of relative terminology can destroy patent draft.
In this article, we will go through all the reasons why the use of relative terminology is discarded while drafting a patent application.
How Relative Terminology Can Destroy Patent Draft?
Patent Draft is a formal application in which all the details about the invention is included by the inventor, which is further submitted with all the other necessary documents to the patent office for patent examination. A patent draft includes the patent specifications and claims which need to be properly framed and formatted, according to the WIPO guidelines. Patent Drafting is the most important aspect of the patent prosecution process and drafting a patent application might seem easy, but actually it’s just the opposite. While drafting the patent application, the following steps have to be followed, without the use of relative terms:
- Filing Invention Disclosure Form: Inventors need to fill this confidential document written by a domain expert(s) for use by a company’s patent department, or by an external patent attorney, to disclose the basic details regarding the invention to the patent office.
- Verifying patentability of invention: Checking patenting pre-requisites, such as novelty, non-obviousness, usefulness of the invention to make sure that the invention is patentable, and its specification and claims can be further written.
- Preparing patent claims: Claims define the scope of invention, and every feature disclosed within the claim will be valid for protection, while anything which lies outside claims will not be eligible for protection.
- Preparing patent drawings: Patent drawings are included within a patent application to make patent understanding simpler and better.
- Creating final patent draft: A patent draft will include all the claims and specification that defines all the information about the innovation.
All the steps mentioned above must be specifically followed as per the USPTO guidelines. Short, similar, or relative terms may or may not point out the exact claims, written in the subject matter. Some of the relative words might not be descriptive enough to portray the desired meaning. Every relative term that brings ambiguity in statements presented in claims, must be avoided.
Also terms such as, ‘like’, ‘similar’, ‘type’, ‘nearly’, ‘approximately’, ‘substantially’ and ‘almost’ must not be used as they provide approximate information, and not the exact one. These and other similar terms will instead only provide a relational description. By using relative terminology, you probably are not describing the action, item, or element itself directly, but rather you are describing in terms of what it has in common with something else. In many situations this other thing you are drawing a comparison with is not relevant to the invention, which will itself create potential confusion. Therefore, by using relative terminology in patent claims, one can automatically render the claim indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112. The relevance and acceptability of the claim language depends on whether an ordinary skilled person from the same domain, is able to analyze and understand the intended claim with respect to the specifications presented within the patent application. In order for relative terminology to be appropriate in the patent claims the disclosure needs to provide guidance that could provide a route to the reader to understand and analyze the intended meaning. At last, patent proofreading must be done twice to ensure that the intended meaning is the final meaning that can be drawn from the patent application. Otherwise, the patent application will be rejected by the patent examiner due to inconsistency in the claims section. Also, professional patent drafters must also know the various tips for improving the patent draft.
Let’s understand the whole concept using an example of a ‘Flight time’. Suppose one of the passengers that want to catch the same flight have an idea about its scheduled time, but the time he knows is approximate. Let’s assume that the XYZ flight will take off at 11:00 HRS from ABC terminal. And the passenger know that its scheduled time is ‘nearly 11:00 HRS’. Now, the term ‘nearly’ is a relative term. There can be several cases of permutations and combinations that give different results. Suppose, he thought the flight departure time is 11:15 HRS or 11:10 HRS; in that case, he is going to miss his flight. There may be a case that he thought that the time is 10:30 HRS and reaches early. Therefore, precision, accuracy, and consistency are the three parameters that must be well maintained in any patent claims.