Blake Dawson - Patent claim interpretation by reference to dependent claims

Joe Mok and David Clark of Blake Dawson report on Termite Tite (NZ) No 2 Limited v Term-Seal (Aust) Pty Limited [2007] FCA 1493, in which the Federal Court considered whether it is permissible to interpret a claim for a patent by reference to its dependent claim. The Court also re-affirmed the strict conditions under which prior art may be admitted when invalidating a patent.

According to Joe Mok and David Clark, dependent claims may be used to help construe claims on which they depend, but should not limit the scope of these inherently broader claims. Patentees can be reassured by this decision that the scope of their monopoly as broadly defined by the independent claims is still maintained whether or not dependent claims are included. The decision should also be welcomed by patentees as it demonstrates that prior art can only be admitted under strict conditions when invalidating a patent.

Blake Dawson - Patent claim interpretation by reference to dependent claims


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