Should ‘between’ ever appear in a patent claim? – 2 February 2016
In our office, ‘between’ is flagged as a word to be wary of when drafting patent claims. Whilst undoubtedly the answer to our rhetorical question is ‘yes’, we pose the question because there is so often reasonable scope to argue as to the meaning of this apparently innocuous term.
The phrase ‘a bridge between the river banks’ is a good example. It seems simple enough, but when put alongside ‘a boat between the river banks’ it’s clear that (in the context of a patent claim) ‘a bridge connecting the river banks’ is probably more appropriate.
Now we have another example. The Full Federal Court [1] recently considered [2] two patents directed to garden hoses. Two of patents’ claims respectively specified:
– ‘creates an increase in water pressure between said first coupler and said second coupler within said inner tube’; and
– ‘for increasing the water pressure between said first coupler and said second coupler within said hose’.
As the Court put it:
‘[In] general terms, the dispute was whether the fluid flow restrictor creates an increase in pressure “from” the first coupler “to” the second coupler (PMG’s construction) or whether the increase relates to an increase in pressure as measured within the hose that is located between the first and second couplers as compared to a hose without a flow restrictor (Blue Gentian’s construction)’. [3]
Logic based on the context of the claim wording dictated Blue Gentian’s construction in this case, although of course (in the glare of hindsight) in this case simply specifying ‘…pressure within the hose’ would have avoided the argument, and in other cases context may not be so helpful.
[1] The court of first appeal for Australian patent matters
[2] In Product Management Group Pty Ltd v Blue Gentian LLC [2015] FCAFC 179
[3] At paragraph 59
