“Bunch O Balloons”
摘要
The purpose of identifying the inventive concept that underlies the wording of the claims is to avoid an interpretation based solely on the literal meaning of the words, which may as a result be unnecessarily broad or too narrow to reasonably protect the patent holder. The description and drawings are an important source in that context. When a patent is being interpreted, what prevails is the perspective of the average person skilled in the art, with his/her knowledge of the prior art. When seeking the balance that, pursuant to Art. 1 of the Protocol on the Interpretation of Art. 69 EPC, must be found between protecting patent holders’ interests and ensuring legal certainty for those who rely on the patent, the courts may, when the question arises as to whether wording included in a claim should be construed as limiting the scope of protection, attribute importance to how the average person skilled in the art would answer the question whether there were good grounds for the limitation. This may involve consideration of the grant file (the part accessible to third parties). Article 2 of the Protocol on the Interpretation of Art. 69 EPC requires due account to be taken of equivalents when determining the scope of protection of a patent, leaving room for both interpretation approaches (one or two-step approach) on how to define “due”, as both aim to find the required middle ground between protecting the patent holder’s interests and ensuring legal certainty for third parties. To assess what the average person skilled in the art might deduce from a limitation introduced during the grant phase, the facts must be evaluated using the criteria set out above.