Next, now that we know the various parts of patent claims; the elements, the preamble, what are dependent claims versus independent claims, let's move on and talk about how to interpret what they mean, what the claim actually covers. So again, let's go back to our patent claim, our writing implement patent claim, the one to my invention, which is to a pencil. You can see the claim written here. So, there are several steps involved in interpreting patent claims. We're going to work through them now. So, step one is to dissect the claim into its constituent parts. So, we went over this a little bit earlier, but I think it's worth talking about this again. The green text, the writing implement comprising is the preamble. This is the introduction to the patent claim. The elements, the yellow colored text here are the actual meat of the claim, the pieces that are forming that boundary that we talked about earlier of what the patent claim actually covers. So, you're going to dissect the claim into the preamble and the various constituent elements. You're going to then determine whether or not the patent is an open claim, or a closed claim. This is important. Almost all patents are open claims which use the phrase comprising or the word comprising, which is highlighted here. What comprising means in the patent law, is the additional claim elements beyond those listed. So, beyond the wooden cylinder, the cylinder of graphite, and the small cylinder of eraser material are immaterial, meaning they would not avoid infringement if you added additional item. So, if I added a clip for example, that I could click my pencil onto my shirt pocket or something like that, I would not be able to avoid infringing this patent claim if it was an open claim, meaning it covers more than what's just on the list of elements. The other thing you can have is a closed claim format. Now, these are more rare and only used in particular circumstances where a patentee needs to. What a closed claim would mean is that only these three elements; the wooden cylinder, the cylinder of graphite, the cylinder of eraser material. Only those elements can be present in order to find infringement which would mean if I put a pencil clip, a shirt clip on the pencil, it would avoid infringement. So, most patentees use an open claim format, but it's worth checking to make sure the word comprising is in the preamble because that's going to confirm that it's an open claim format. So, that'll tell you something about the patent's scope. Next, is to create what we call in the patent law, a claim chart. A claim chart is basically taking the elements of the patent claim which again are the components of the patent claim that provide that boundary, provide the outlines of the subject matter, and we're going to put them into a table. We're just basically going to name each element. I have a wooden cylinder element, a graphite cylinder element, and an eraser element in my invention here. I'm gonna put them each into a new charter table so that I can then fill out what would be a fuller description. This helps me stay on track. It's very important to understand that the way that we interpret patent claims and the way that you evaluate patent claims both for infringement and for validity, is element by element. These elements really matter. It's worth separating them out and treating them independently and treating them separately. So, you create a claim chart. You basically create a table, put each element on the table, and then start to fill it out. You go element by element. So, for our wooden cylinder, we might say something like alright, it's a wood tube or shaft of a pencil and must be hollow and contain the graphite. So, we can use, when we talk about the description where we're thinking about it for ourself, you might use more ordinary language not necessarily patent claim language. What you're essentially trying to do is interpret that patent claim language make it real. Make it something that you can understand. If you are doing this for a jury for example, the judge would be hoping provide the jury with information, and the judge would do something almost exactly like this. Provide sort of a real-world explanation, a more detailed explanation of what that patent claim element actually meant. So, in the wooden cylinder, we could say something like, it's a wooden tube or shaft of the pencil. It must be hollow, and it must contain the graphite. How do we know that? Well, that's because of the way that the elements, the way that the patent claim works is it says that the graphite is inside the wooden shaft. Next, you go to the graphite cylinder element. Black graphite material for writing located within the wooden part of the pencil. Now, the black graphite piece is open to interpretation. Maybe it's not black, doesn't necessarily have to be black, but again, you could use sort of ordinary language in this particular case for yourself. This is again not a legally binding definition. This is something that's going to allow you to understand what the claim really means. So, you think about what it really means to say a cylinder of graphite inside hollow core, and you're going to describe to yourself what you think that really means. Which here would be something like graphite material for writing located inside the wooden shaft or the pencil. Then finally, the eraser. So, a cylindrical shaped eraser attached to the end of the pencil shaft. Again, the cylindrical part is not really in the patent claim but it does seem to be one implied, and it allows me to envision exactly what we're talking about here. That's how you basically go element by element. It's in stepping through the patent claim and attaching a real-world, or a more easily understandable description into each piece of the patent claim. Then next, what you do is, you go back through what you've determined to be your element by element analysis, and you clarify any uncertain terms. This is where patent law gets a little more of the patent interpretation process because of the patent law gets a little more tricky is in step four. So, here we're going to use the example of the eraser because eraser might mean a lot of different things depending on the context, depending on the timing, depending on the technology available. So, eraser can mean a variety of things. What we need to do is narrow that down a little bit. Be a little more clear so that we can understand exactly what we mean, and exactly what the patent covers when it says eraser.
