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Patent Claims

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What Are Patent Claims?

Patents are a form of intellectual property and are governed by intellectual property laws. Patent claims are the most important part of the patent application. They are statements that describe in detail exactly what your invention covers. When you write your patent claims you are effectively "claiming" the material in the claims as your own. The claims determine whether your invention is patentable and determine the scope of protection your patent will give you.

What Do I Need to Include in My Patent Claims?

The patent claims must list your invention's structural elements (for a product) or steps (for a process). Your claims should distinctly claim the elements that you believe make up your invention.

Do I Need to Put My Patent Claims in a Certain Format?

There is no particular format required for patent claims but most claims have a preamble, a transition phrase, and a body:

  • Preamble - an introductory phrase that describes what you want to claim (e.g., "a method of growing wheat").
  • Transition Phrase - the word you use to transition from the preamble to the body of your claim is very significant in determining the scope of your patent. Words like "comprising" are considered open transition phrases and mean that the claim encompasses devices or processes with additional elements not listed in the body, while words like "consisting of" mean that the claim only covers devices or processes that have no more than the elements of the claim.
  • Body - this is where you would list the structural elements or steps to your invention. The body of the claim limits the scope of the general description of your invention that you give in the preamble.

How Broad Should I Make My Claims?

When you make your claims, you have to balance the desire to get as much protection as possible with the need to get a valid patent.

  • Very broad claims (e.g., claiming "a shoe") - will give you a wide scope of protection, but will make it harder to get a patent because broad claims are more likely to be invalidated by previous inventions and it is harder to explain how to make and use every invention covered by broad claims.
  • Narrow claims (e.g., "a shoe made of green leather, with black laces made out of a synthetic material") - make it easier to get protection, but they also severely limit that protection. Under the example of a narrow claim, another inventor could produce an identical shoe with yellow laces and not infringe.

Are There Any Special Kinds of Claims?

Patent law allows two special kinds of claims.

  • Product-by-process - a product-by-process claim covers a product, but claims it by describing the process used to make it.
  • Means-function - means-function claims allow an inventor to describe an element of a claim as something used to perform a function rather than naming the element as a specific structure or act.

Do I Need an Intellectual Property Lawyer?

Because patent claims are so important to the patent process, you should probably consult with an intellectual property attorney to make sure your claims adequately protect your invention without being overly broad. An experienced patent attorney will be able to draft patent claims that will maximize the scope of your patent.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 06-25-2018 02:02 AM PDT

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