Scope of the Claims
38.Since Actavis UK Ltd v Eli Lilly and Co [2017] UKSC 48 there have been two steps to ascertaining the scope of a patent claim. The first is to decide what the claim means in accordance with the general rules of construction of a document, see Actavis at [58] and Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, at [33]. This has sometimes been referred to as the “normal construction” of a claim. It is a purposive construction, the inventor’s purpose being ascertained from the description and the drawings as they would be understood by a person skilled in the art with the common general knowledge in mind, see Icescape Ltd v Ice-World International BV [2018] EWCA Civ 2219, at [60]. 39.If a product or process does not infringe the claim as a matter of normal construction, the analysis moves to the second question which is whether the product or process nonetheless falls within the scope of the claim because it varies from the invention according to the normal construction in a way or ways which is or are immaterial.
- Introduction
- The Evidence of Travis McClure
- The Experts
- The Patent
- Claim 1
- The Skilled Person
- Common General Knowledge
- Scope of the Claims
- Integer (1) – removable fastener
- Integer (2) – an elongate body
- Integer (3) – a head at one end
- Integer (8) – a screw head adjacent the first member head
- operated
- aperture in each of two workpieces
- The product alleged to infringe
- An equivalent
- Conclusion on infringement
- Validity
- Conclusion on Validity
- Insufficiency
- Overall Conclusion