Patent Analysis- Its all about the claims folks....

I have been reading a lot of computer people talk about patent's. Here, at ArsTechnica, is the latest example that made me want to write this post. Timothy B. Lee goes on in the post and talks about the Verizon patents that cover voice over IP. In his discussion of the patents, he never talks about the actual claims.

He talks about the background. He talks about the general patent and market landscape. Never once does he talk about the actual claims of the patent.

The claims are the only part that matters. They are the part you sue someone for. They are the part the court interprets. They are the part that you file your obviousness challenge on. The only reason for the rest of the patent to be written at all is to support your claims. If you can't point to at least 1 part of a sentence in your background that supports your claim, then you don't get the claim allowed by the patent office. Once the support for a claim is shown to be there, then the background doesn't matter. The claims control what limitations are on the interpretation, and what is covered. You can't sue someone because of something that is in the methods section. Only the claims.

You can have a background section that is totally obvious and says nothing at all ground breaking. Given his description of the patents in question, they likely do have that. BUT - the claims are all that matters. Read those. Parse those. Figure those out. Any time that the claims use a tortuous definition, you get to look back into the body of the patent and see how that term was defined. It is only by doing this very long and tortured analysis that you can say, with any certainty, what a patent does and does not cover. Given that information, you can then say whether or not it is, or is not, obvious.

His article references the KSR v. Teleflex ruling that the supreme court was going to hand down. They have done so, and I will talk about that next.